Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Limited (CCT236/16) [2018] ZACC 7; 2018 (5) BCLR 527 (CC); [2018] 6 BLLR 531 (CC); (2018) 39 ILJ 1213 (CC) (20 March 2018)

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Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Limited (CCT236/16) [2018] ZACC 7; 2018 (5) BCLR 527 (CC); [2018] 6 BLLR 531 (CC); (2018) 39 ILJ 1213 (CC) (20 March 2018)

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Heads of arguments

CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 236/16
In the matter between:
FOOD AND ALLIED WORKERS’ UNION
obo J
GAOSHUBELWE
Applicant
and
PIEMAN’S PANTRY (PTY)
LIMITED
Respondent
Neutral citation:
Food and Allied Workers’ Union obo Gaoshubelwe v Pieman’s
Pantry (Pty) Limited
[2018] ZACC 7
Coram:
Mogoeng CJ, Zondo DCJ,
Cameron J, Froneman J, Jafta J,
Kollapen AJ, Kathree Setiloane AJ, Madlanga J,
Mhlantla J, Theron J and
Zondi AJ
Judgments:
Zondi AJ        (minority):
[1] to [76]
Zondo DCJ    (concurring): [77] to [137]
Kollapen AJ (majority): [138] to [215]
Heard on:
3 August 2017
Decided on:
20 March 2018
Summary:
interpretation — Labour Relations Act — unfair
dismissal claims — applicability of Prescription Act
Prescription — interruption — referral to conciliation
process
ORDER
On appeal from the Labour Appeal Court
(hearing an appeal from the Labour Court):
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders of the Labour Court and Labour Appeal Court are set aside.
4.
The order of the Labour Court is replaced with the following:
“The special
plea of prescription is dismissed.”
5.
There is no order as to costs in the Labour Court, Labour Appeal
Court, and in this Court.
JUDGMENT
ZONDI AJ
(Mogoeng CJ, Zondo DCJ and Jafta J concurring):
Introduction
[1]
This matter raises two issues of fundamental importance
concerning the litigation of unfair dismissal claims under section
191 of
the Labour Relations Act
[1]
(LRA).  The first is whether the Prescription Act
[2]
applies to such claims and the second is whether the unfair dismissal
dispute referred by the applicant to the Labour Court
on behalf
of the employees employed by the respondent had prescribed.  These
issues arise because of the findings by the Labour
Court and the
Labour Appeal Court that the Prescription Act applies to
such claims and that the unfair dismissal claims
brought by the
applicant on behalf of the employees against the respondent had
prescribed.
Parties
[2]
The applicant,
Food and Allied
Workers’ Union (FAWU), a trade union registered in terms of the
LRA, brings this application in its own interest
and on behalf of its
members, the former employees of the respondent, Pieman’s
Pantry (Pty) Ltd (Pieman’s).
Factual background
[3]
The employees were dismissed on 1 August 2001 for allegedly
participating in an unprotected strike.  On 7 August 2001, FAWU

on behalf of the dismissed employees referred a dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA) for

conciliation.
[4]
On 3 September 2001, the CCMA certified that the dispute
remained unresolved.  Following the non-resolution of the
dispute,
FAWU referred the matter to the CCMA for arbitration.
On 15 March 2002, the CCMA ruled that it did not have jurisdiction to

arbitrate the dispute because the dismissal related to participation
in a strike that did not comply with the provisions of Chapter
IV of
the LRA.  FAWU launched a review application seeking the setting
aside of the CCMA ruling.  That application was
dismissed by the
Labour Court on 9 December 2003.
[5]
On 16 March 2005, some three and half years after the
certificate of non resolution was issued by the CCMA, FAWU
referred the
dispute to the Labour Court for adjudication in
terms of section 191(5)(b)
[3]
of the LRA.  In terms of this section a dispute such as this is
referred to the Labour Court for adjudication.  On 19
April
2005, Pieman’s filed a statement of defence in which it, among
others, contended that the employees’ claim for
reinstatement
in terms of the LRA had prescribed.  FAWU responded that the
Prescription Act did not apply to such claims,
alternatively that the
referral of the dispute to the CCMA for conciliation interrupted the
running of prescription.
[6]
By agreement between the parties the Labour Court was required
to adjudicate the special plea of prescription separately, before
any
other issues.  The Labour Court held that the Prescription Act
does apply to claims under the LRA and it accordingly upheld
Pieman’s
special plea of prescription.
[7]
Aggrieved by the Labour Court’s ruling upholding the
special plea, FAWU appealed to the Labour Appeal Court.  On 8
September
2016, the Labour Appeal Court dismissed FAWU’s
appeal, which resulted in the present application.
[8]
It is important to point out that the litigation in this
matter occurred before an amendment to the LRA in the form of section
145(9)
[4]
which took effect on 1 January 2015
[5]
and the LRA must be interpreted in its pre-amended form.
Litigation history
Labour Court
[9]
As I have alluded to above, FAWU challenged the dismissal of
its members in the Labour Court
[6]
on the basis that it constituted an unfair dismissal in terms of the
relevant provisions of the LRA.
[10]
FAWU contended that the dismissal was substantively unfair in
that none of its members had participated in the alleged unprotected

industrial action, alternatively that such industrial action had been
terminated by agreement prior to the dismissal, and an agreed

sanction had been implemented by Pieman’s.  Procedurally,
FAWU contended that the dismissal was unfair in that none
of its
members received individual notification of the disciplinary
hearing.  Nor were they afforded sufficient opportunity
to
prepare their defence.
[11]
Pieman’s opposed FAWU’s claim.  Apart from
defending the matter on the merits, Pieman’s also raised three

points in limine
,
two of which are relevant for the purposes
of this appeal.  Pieman’s contended first, that FAWU’s
claim had prescribed
in terms of the Prescription Act.  Second,
it contended that the Labour Court did not have the jurisdiction to
hear the matter
as the referral of the dispute to the Labour Court
was made outside of the 90 day period prescribed by section 191(11)
of
the LRA, without a condonation application.
[7]
[12]
In relation to the prescription point, Pieman’s argued
that the provisions of the Prescription Act were applicable in
addition
to the provisions of section 191(11) of the LRA.  The
underlying argument was that the Prescription Act applied to any
debt,
unless it is specifically excluded by an Act of Parliament in
terms of section 16(1).
[8]
Pieman’s contended that the claim sought to be enforced by FAWU
was a “debt” as envisaged by the Prescription
Act and was
therefore not excluded from the reach of the Prescription Act.  The
result, argued Pieman’s, was that in
terms of section 11(d) of
the Prescription Act the claim was subject to the prescription period
of three years.  Pieman’s
contended that the claim for
reinstatement became due on 3 September 2001 when the CCMA
commissioner certified that the dispute
remained unresolved.  It
asserted that by the time the statement of claim was filed in the
Labour Court on 16 March 2005,
being more than three years from
3 September 2001, the claim against it had prescribed.
[13]
The Labour Court condoned FAWU’s late filing of the
statement of claim but, strangely enough, it upheld the prescription
plea
and dismissed the claim.  In the result, the point in
limine relating to the late referral was no longer an issue in the
Labour
Appeal Court.
[14]
In upholding the special plea, the Labour Court held that the
Prescription Act applies to claims litigated under the LRA and found

that, because the referral of the dispute for adjudication by the
Labour Court was made more than three years after the date of

dismissal, the applicant’s claim had prescribed.  The
Labour Court rejected FAWU’s contention that the referral
of
the dispute to the CCMA interrupted the running of prescription.
The basis for the rejection was that the referral of
the dispute to
the CCMA does not constitute a process by which prescription could be
interrupted under the Prescription Act.
Labour Appeal Court
[15]
FAWU appealed to the Labour Appeal Court.
[9]
The issues before that Court were whether the Prescription Act
applies to the referral and prosecution of disputes under
section 191
of the LRA; and if it does, whether the unfair dismissal dispute
referred by FAWU on behalf of its members had prescribed.
[16]
In considering the issues before it, the Labour Appeal Court
analysed the relationship between section 210 of the LRA and section

16(1) of the Prescription Act, which are the sections that contain
provisions which may provide a basis for the exclusion of operation

of the Prescription Act in litigation under the LRA.  Section 16(1)
of the Prescription Act provides for the exclusion
of the operation
of the Prescription Act if its provisions are inconsistent with
another Act that prescribes a specific period
within which a claim is
to be made or an action is to be instituted in respect of a debt, or
imposes conditions on the institution
of an action for the recovery
of a debt.  Section 210 of the LRA provides that the LRA would
apply should any conflict arise
between it and the provisions of any
law other than the Constitution or any Act expressly amending it.
[17]
The Labour Appeal Court pointed out that the questions whether
there is inconsistency or conflict between the LRA and the
Prescription
Act and whether the latter Act applies to litigation
under the LRA were extensively considered by it in
Myathaza
,
[10]
albeit in the context of awards of arbitrators in the CCMA.  It
settled the question in favour of the Prescription Act being

applicable to such awards before the amendment to the LRA in the form
of section 145(9).  The Labour Appeal Court held that
there was
no reason to deviate from
Myathaza
[11]
to the extent that it dealt with the applicability of the
Prescription Act to litigation under the LRA after the rendering of
an award.
[18]
Although the Labour Appeal Court accepted that the LRA creates
rights unknown to the common law and also a distinct dispute
resolution
procedure, it could see no reason why that should exclude
prescription.  The further argument that the LRA creates its own

specific deadlines for resolving disputes which should trump the
provisions of the Prescription Act had also been rejected by it
in
Myathaza
.
[12]
The Labour Appeal Court reasoned that the mere fact that the
LRA contains its own dispute resolution procedures is a necessary,

but not sufficient reason for holding that the Prescription Act is
inconsistent with the LRA.  Section 191 of the LRA,

reasoned the Labour Appeal Court, does not create a cause of action,
but merely regulates the process by which a remedy may be
obtained.
It imposes a time-bar rather than a prescription regime.  In
its view, the discretion of the Labour Court
to condone the late
filing of referrals operates within, and not in competition with, the
periods prescribed by the Prescription
Act.
[19]
The Labour Appeal Court held further that a dismissed
employee’s claim that his or her employment was unfairly
terminated
and that the unfairness must be remedied, gives rise to a
debt because there is no uncertainty about what the former employer
is
required to do.  In its view, an unfair dismissal claim is
akin to a demand for specific performance, which forms a debt as

contemplated by the Prescription Act.  The Labour Appeal Court
accordingly held that the Prescription Act applies to all litigation

under the LRA, including claims under section 191 of the LRA.
[20]
As regards to the question whether the running of prescription
had been interrupted, the Labour Appeal Court found that this had
not
occurred.  It rejected FAWU’s contention that the referral
of the dispute to the CCMA interrupted prescription,
holding that a
referral is merely a procedural step akin to completing a claim form;
in terms of section 17 of the Road Accident
Fund Act
[13]
(RAF Act) it does not initiate litigation.  The Labour Appeal
Court reasoned that the Prescription Act requires “a
process. . . whereby legal proceedings are commenced”
to interrupt prescription.
[14]
According to the Labour Appeal Court, the only manner that legal
proceedings can be initiated under the LRA is by a
referral under
section 191(5)(b).  The Labour Appeal Court held that in this
case by the time the referral took place the
claim had prescribed.
In this Court
[21]
FAWU has approached this Court seeking leave to appeal against
the judgment of the Labour Appeal Court.
Applicant’s submissions
[22]
FAWU submits that the Prescription Act does not apply to
unfair dismissal disputes in terms of section 191 of the LRA.
It
relies on section 210 of the LRA and the saving clause contained
in section 16(1) of the Prescription Act to support its submission.

The basis for this submission is that the dispute resolution
procedures contained in section 191 of the LRA are designed to ensure

the effective resolution of labour disputes.
[23]
FAWU argues that an important characteristic of labour
disputes that necessitates a different dispute resolution process, is
that
unresolved disputes have the potential to disrupt labour peace,
which may have negative social and economic consequences affecting

the rest of society.  The argument is that the dispute
resolution procedures of the LRA are necessary to promote the
expeditious
resolution of labour disputes, and to allow for
condonation of non-compliance with time periods to ensure the
effective resolution
of rights disputes by the CCMA and the Labour
Court.
[24]
FAWU’s alternative argument is that even if the
Prescription Act does apply, prescription was interrupted by the
initial referral
of the dispute to the CCMA for conciliation.
Respondent’s submissions
[25]
Pieman’s makes four primary submissions.  First, it
submits that the Prescription Act applies to disputes under the LRA.

The basis for this submission is that an unfair dismissal claim under
the LRA is a “debt” for purposes of the Prescription

Act.  Second, Pieman’s rejects the contention that there
is an inconsistency between the Prescription Act and the LRA.

It submits that the two Acts are complementary.  Pieman’s
points out that section 191 imposes a time-bar, and not an

alternative prescription regime.  Thirdly, it submits that
FAWU’s unfair dismissal claim had prescribed as the statement

of claim was filed in the Labour Court more than three years after
the certificate of non-resolution was issued.  Pieman’s

argues that the service of a referral for conciliation by the CCMA
does not amount to “any process” capable of interrupting

prescription in terms of section 15(1) of the Prescription Act.
It contends that a referral is a precondition to the enforcement
of a
debt and does not lead to an ultimate final determination of the
dispute.  Finally, Pieman’s submits that prescription

started running after a certificate of non-resolution was issued.
Jurisdiction and leave to appeal
[26]
For this Court to grant leave, an applicant must demonstrate
that this Court has jurisdiction to entertain the matter and that it

is in the interests of justice to do so.  The question of
jurisdiction arises in this matter because the effect of the
Labour Appeal Court
order upholding the special plea of
prescription based on the Prescription Act preventing the dismissed
employees from approaching
a court to challenge the fairness of their
dismissal.  Their right to fair labour practices and the right
of access to courts
were therefore affected.  The issue
concerns, essentially, the question whether the Labour Appeal Court’s
interpretation
of the LRA was correct.
[27]
This Court, in
Rural Maintenance
, held that:
“The proper
interpretation of the LRA will raise a constitutional issue that
clothes this Court with jurisdiction, but this
does not mean that
this Court will hear all appeals from the Labour Appeal Court.  It
will only do so if the appeal raises
‘important issues of
principle’.”
[15]
[28]
The interpretation of the LRA, a statute that gives effect to
the constitutional right to fair labour practices as envisaged in
section 23 of the Constitution, is a constitutional matter.
[16]
The right to access courts as provided for in section 34 of the
Constitution is implicated, as a result of the interpretation
of the
LRA and the Prescription Act by the Labour Court and Labour Appeal
Court.
[17]
Accordingly, the issues raised are constitutional in nature and this
Court has jurisdiction.
[18]
The matter also raises an arguable point of law of general public
importance that ought to be considered by this Court,
[19]
as the application and operation of the Prescription Act in respect
of unfair dismissal claims in terms of the LRA, have not been
settled
by this Court.  There have been a number of different approaches
to the issue by the Labour Court and Labour
Appeal Court over
time.
[20]
[29]
There are good prospects of success on the merits, and that
being so, it is in the interests of justice that leave be granted.
Issues
[30]
The main issues are whether the Prescription Act applies to
the litigation under the LRA and whether the unfair dismissal claim
instituted by FAWU against Pieman’s under the LRA had indeed
prescribed as the Labour Court and the Labour Appeal Court

found.
[31]
The answer to this and other related questions must be
informed by an analysis of the relevant provisions of the
Prescription Act
and those of the LRA.  It is essentially an
exercise involving the interpretation of these two statutes, which
must be undertaken
through the prism of the Constitution.
[32]
Section 3 of the LRA is also very instructive.  It reads:
“Any person
applying this Act must interpret its provisions—
(a)
to give effect to its primary objects;
(b)
in compliance with the Constitution; and
(c)
in compliance with the public international law obligations of the
Republic.”
[33]
As the Prescription Act limits the right of access to courts
guaranteed by section 34 as well as the right to fair labour
practices
in terms of section 23(1) of the Constitution, we are
enjoined by section 39(2) of the Constitution to promote the spirit,
purport
and objects of the Bill of Rights in the process of
interpreting its provisions.  In other words, the Prescription
Act must
be interpreted to give proper constitutional effect to these
rights.
[34]
This Court in
Makate
,
[21]
with reference to
Fraser
,
[22]
affirmed this principle in these terms:
“It is
apparent from
Fraser
that section 39(2) introduced to our law
a new rule in terms of which statutes must be construed.  It
also appears from the
same statement that this new aid of
interpretation is mandatory.  This means that courts must at all
times bear in mind the
provisions of section 39(2) when interpreting
legislation.  If the provision under construction implicates or
affects rights
in the Bill of Rights, then the obligation in section
39(2) is activated.  The court is duty-bound to promote the
purport,
spirit and objects of the Bill of Rights in the process of
interpreting the provision in question.”
[23]
[35]
The Court went on to explain how this interpretation exercise
was to be approached:
“The objects
of the Bill of Rights are promoted by, where the provision is capable
of more than one meaning, adopting a meaning
that does not limit a
right in the Bill  of  Rights.  If the provision is
not only capable of a construction that
avoids limiting rights in the
Bill of Rights but also bears a meaning that promotes those rights,
the court is obliged to prefer
the latter meaning.  For, as this
court observed in
Fraser
—
‘section
39(2) requires more from a court than to avoid an interpretation that
conflicts with the Bill of Rights.  It
demands the promotion of
the spirit, purport and objects of the Bill of Rights.’”
[24]
[36]
The creation of a comprehensive litigation framework under the
LRA must be understood in the context of the constitutional right
to
fair labour practices in section 23(1) of the Constitution.
This section guarantees everyone a right to fair labour

practices.  It envisages legislation that will give effect to
this right.  The LRA is such legislation.  Section
185 of
the LRA affirms the right of everyone not to be unfairly dismissed or
subjected to unfair labour practices.
[37]
An employee who alleges that he or she has been
unfairly dismissed by his or her employer has the right to have the
dispute concerning
the dismissal resolved by the application of law
decided in a fair and public hearing before an independent and
impartial tribunal
or forum.  The CCMA and the Bargaining
Councils established under the LRA are such independent and impartial
fora envisaged
by section 34 of the Constitution.
Does the Prescription Act apply to
litigation under the LRA?
[38]
As I have pointed out, the question whether the Prescription
Act applies to claims litigated under the LRA must be informed by an

analysis of its provisions and those of the LRA.
[39]
The starting point is section 16(1) of the Prescription Act.
This section reads:
“Subject to
the provisions of subsection (2)(b), the provisions of this Chapter
shall, save in so far as they are inconsistent
with the provisions of
any Act of Parliament which prescribes a specified period within
which a claim is to be made or an action
is to be instituted in
respect of a debt or imposes conditions on the institution of an
action for the recovery of a debt, apply
to any debt arising after
the commencement of this Act.”
[40]
Section 210 of the LRA deals with application of the LRA when
in conflict with other laws.  It provides:
“If any
conflict, relating to the matters dealt with in this Act, arises
between this Act and the provisions of any other
law save the
Constitution or any Act expressly amending this Act, the provisions
of this Act will prevail.”
[41]
Section 16(1) is located in Chapter III of the Prescription
Act.  It renders the provisions of Chapter III applicable to any

debt unless there is inconsistency between its provisions and any Act
of Parliament.  The default position therefore is that,
in
general, the Prescription Act applies to all debts unless its
provisions are inconsistent with the provisions of any Act
[25]
or if any conflict, relating to the matters dealt with in the LRA,
arises between the LRA and the Prescription Act.  In other

words, the applicability of the Prescription Act to the litigation
under the LRA is determined by section 16 of the Prescription
Act and
section 210 of the LRA.
[42]
The purpose and the text of each of the two statutes must be
assessed holistically in determining whether a conflict as
contemplated
in section 210 of the LRA or an inconsistency envisaged
in section 16(1) exists.  But before doing so, it is necessary
to
first set out how an inconsistency is evaluated.
Inconsistency evaluation
[43]
Mdeyide
dealt with the inconsistency between the
provisions of the RAF Act and the Prescription Act.
[26]
This Court articulated the approach to assessing inconsistency in
these terms:
“A
consistency evaluation is thus necessary.  The test has been
formulated as ‘in every case in which a plaintiff
relies upon a
[certain provision], the cardinal question is whether that provision
is inconsistent with [another provision]’.
Inconsistency
may arise as the result of a different time period being stipulated,
but also on other points, for example, with
regard to mental
capacity.  However, where provisions have been found to deal
with a similar subject-matter, yet without being
identical, it has on
occasion been held that there was no inconsistency.”
[27]
(Footnotes omitted.)
[44]
The Court went on to examine the differences between the
provisions of the two statutes in question and found that—
“[t]here is
therefore a clear reason for the difference between the Prescription
Act and the RAF Act.  The Prescription
Act regulates the
prescription of claims in general, and the RAF Act is tailored for
the specific area it deals with, namely claims
for compensation
against the Fund for those injured in road accidents.  The
legislature enacted the RAF Act – and included
provisions
dealing with prescription in it – for the very reason that the
Prescription Act was not regarded as appropriate
for this area.
Looking for consistency in this context is a quest bound to
fail.”
[28]
[45]
In
Myathaza
, this Court examined whether the
Prescription Act applied to arbitration awards in terms of the
LRA.
[29]
Three judgments emanated from the Court with a split decision and
thus no binding authority on whether the Prescription Act
was
applicable.
[30]
Nevertheless, the statements in those judgments are a useful starting
point.
[46]
The first judgment in
Myathaza
, penned by Jafta J, with
Nkabinde ADCJ, Khampepe J and Zondo J concurring, held that—
“[i]n the
context of the Constitution, inconsistency is given a wider meaning
which goes beyond contradiction or conflict.
Legislation or
conduct is taken to be inconsistent with a provision in the
Constitution if it differs with a constitutional provision.

Sometimes this arises from the overbroad language of a
statute.”
[31]
[47]
The first judgment pointed out that “section 16(1) of
the Prescription Act does not contemplate that there should be
conflict
of the nature that renders the two Acts mutually exclusive.
It is enough if there are material differences between
them.”
[32]
[48]
After examining the provisions in question as well as the
purpose of each Act, and in light of the Constitution, the first
judgment
went on to hold that the two Acts are incompatible.
[33]
The second judgment in
Myathaza
, penned by Froneman J with
Madlanga J, Mbha AJ and Mhlantla J concurring, found otherwise.
It held that the two Acts
are capable of being interpreted as
complementary and thus not inconsistent.
[34]
[49]
In my view, for the reasons that will become apparent later in
this judgment, the provisions of the Prescription Act are
inconsistent
with those of section 191 of the LRA to the extent that
there are material differences between the two Acts.  Inconsistency

arises as a result of different time periods that are stipulated.
Those time periods are not procedural but are substantive.
My
conclusion therefore is that the Prescription Act does not apply to
litigation conducted under section 191 of the LRA.
Prescription regime
[50]
The purpose of prescription is primarily the need for
certainty, finality and to ensure the quality of adjudication.
In
Mdeyide
this Court stated that:
“This Court
has repeatedly emphasised the vital role time limits play in bringing
certainty and stability to social and legal
affairs, and maintaining
the quality of adjudication.  Without prescription periods,
legal disputes would have the potential
to be drawn out for
indefinite periods of time, bringing about prolonged uncertainty to
the parties to the dispute.  The quality
of adjudication by
courts is likely to suffer as time passes, because evidence may have
become lost, witnesses may no longer be
available to testify, or
their recollection of events may have faded.  The quality of
adjudication is central to the rule
of law.”
[35]
(Footnotes omitted.)
[51]
As I see it, the bases for the rule concerning extinctive
prescription includes the need to protect people from injustice which
may result from the fact that their conduct in a certain situation at
a certain time could be assessed much more critically, several
years
later, because of different standards due to changes in cultural
values, scientific knowledge, societal interests, or public
policy.
Therefore, the protection which extinctive prescription affords
debtors is justified on the basis of functional utility
and societal
interests.
[52]
Chapter III of the Prescription Act, in which sections 10 to
16 are located, is concerned with the prescription of debts.  Section

10 provides for the extinction of debts by prescription.
Section 10(1) reads:
“Subject to
the provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the lapse
of the period which in
terms of the relevant law applies in respect of the prescription of
such debt.”
[53]
Section 11 concerns the period of prescription of debts and in
terms of section 11(d) the period of prescription is “save

where an Act of Parliament provides otherwise, three years in respect
of any other debt”.
[54]
Section 12 provides for the running of prescription.  Section
12(1) reads:
“Subject to
the provisions of subsections (2), (3), and (4), prescription shall
commence to run as soon as the debt is due.”
[55]
Section 15 is concerned with judicial interruption of
prescription.  Section  15(1) provides:
“The running
of prescription shall, subject to the provisions of subsection (2),
be interrupted by the service on the debtor
of any process whereby
the creditor claims payment of the debt.”
[56]
The rationale behind section 15 is that where a creditor takes
judicial steps to enforce the debt, which is indicative of the
creditor’s
intention to enforce the debt, prescription should
not continue running while the law takes its course.
[36]
[57]
Unless a creditor’s failure to take action to enforce
his or her debts within the prescribed periods is excused either by
the debtor’s express or tacit acknowledgment of liability
[37]
or by circumstances contemplated in section 13, a debt becomes
prescribed.  Once a debt has prescribed, the creditor cannot

apply to court for it to be revived.  Neither the Prescription
Act nor the common law provides for condonation if a creditor
brings
its claim after the period has run and the debt has prescribed.
Properly viewed, the effluxion of time over the specified
period
extinguishes the debt.  Not even an acknowledgment of a debt
will revive a prescribed debt.
[58]
That being said, a creditor is not automatically barred from
instituting legal proceedings for the recovery of a debt which has
prescribed.  A court may not raise the issue of prescription of
its own accord but may allow the debtor to raise it at any
stage of
the proceedings.
[38]
If the debtor raises prescription, the creditor will not be able to
pursue the legal proceedings any further and the debt
will be
irrecoverable.
[39]
[59]
Accordingly, the Prescription Act prescribes a time period
within which a creditor must claim repayment of a debt.  If not
claimed within the specified period and the debtor avers that the
debt has prescribed, a creditor cannot seek condonation of his
or her
“non-compliance” with the time period.  This would
be the end of the road and the creditor could not take
the
enforcement of the prescribed debt any further.
Labour relations regime
[60]
The primary object of the LRA, as set out in the long title,
is to change the law governing labour relations and for that purpose

to give effect to and regulate the constitutional right to fair
labour practices enshrined in section 23 of the Constitution.  In

achieving this purpose, the LRA provides mechanisms including
procedures, processes, principles and the fora for the expeditious

resolution of labour disputes.  The latter is generally evident
in Chapter VII of the LRA.  In particular section 135(2)
reads
as follows:
“The
appointed commissioner must attempt to resolve the
dispute
through
conciliation within 30 days of the date the Commission received the
referral:  However the parties may agree to extend
the 30-day
period.”
[61]
The consistency evaluation concerns section 191 of the LRA and
the question that arises is whether the provisions contained in that

section—
(a)
prescribe a specified period within which a claim is to be made or an
action is to be instituted in respect of a debt; or
(b)
impose conditions on the institution of an action for the recovery of
a debt.
[62]
Section 191 of the LRA outlines the procedure in relation to
disputes about unfair dismissals and unfair labour practices.
Subsection
(1) deals with the referral of a dispute to the
relevant bargaining council or the CCMA and prescribes certain time
periods within
which a referral is to be made.
[40]
Subsection (2) makes provision for the condonation of a late
referral in subsection (1), which is conditional upon good cause

shown for the delay.
[41]
Subsection (4) places the duty to resolve the dispute on either the
relevant bargaining council or the CCMA.
[42]
However, should the dispute remain unresolved at the
conciliation stage, subsection (5) permits its referral to the
council
or CCMA for arbitration or to the Labour Court for
adjudication.
[43]
Subsection (11) prescribes certain time limits within
which the dispute should be referred to the Labour Court, and

provides for condonation for the late referral of the dispute upon
good cause shown.
[44]
It is apparent from this analysis that, although the litigation
under the LRA requires expedition, it is not intolerant of
the delay.
It condones delays for which there is a satisfactory
explanation.
Is there an inconsistency?
[63]
In my view, the Labour Appeal Court erred in finding that the
Prescription Act applies to litigation under the LRA and in
concluding
that the applicant’s unfair dismissal claim, which
was filed more than three years after the dismissal of the employees,
had prescribed.  I say so for the following reasons.
[64]
First, the differently stipulated time periods in which to
institute litigation are the material indicators for the conclusion
that
the Prescription Act does not apply to litigation under the
LRA.  As I have already pointed out, one of the primary objects

of the LRA is to change the law governing labour relations and for
that purpose to give effect to section 23 of the Constitution.

That much is expressly stated in the long title.  What this
means is that the LRA is “umbilically linked” to the

Constitution.
[45]
Like the Constitution, when the LRA was enacted, it signalled a
dramatic change in the industrial relations landscape from
one
characterised by strike, conflict, and industrial injustice to one in
which the rights of the employers and employees are governed
by the
Constitution.  Therefore, the LRA is not an ordinary statute but
legislation that is interpreted in the same manner
that the
Constitution is read.  The LRA must be given a generous
construction over a merely textual or legalistic one in order
to
afford employees the fullest possible protection of their
constitutional guarantees.
[65]
The LRA seeks to “give effect to and regulate the
fundamental rights conferred by section 23 of the Constitution”.
[46]
These include the right to fair labour practices.  Importantly,
the LRA regulates the enforcement of the rights guaranteed
by this
section by creating special principles applicable to such rights,
special processes, and fora where these rights may be
asserted.
Implicit in the provisions and tone of the LRA is the principle and
value of fairness.  Section 191 outlines
the procedure to be
followed in vindicating rights against unfair dismissals and unfair
labour practices.
[66]
A dispute about the fairness of a dismissal is dealt with in
terms of section 191 of the LRA which is the only procedure which
must
be followed in enforcing the relevant rights.  A referral
must be made within 30 days of the date of a dismissal.  The

section makes provision for condonation of a late referral upon good
cause shown.  The bargaining council having jurisdiction
or the
CCMA must attempt to resolve the dispute through conciliation.
If the CCMA or the bargaining council has certified
that the dispute
remains unresolved or if 30 days have expired since the referral and
the dispute remains unresolved the employee
may refer a dispute to
the CCMA or the bargaining council for arbitration or to the Labour
Court for adjudication depending on
the nature of the dispute.
Such a referral must be made within 90 days after the bargaining
council or the CCMA has certified
that the dispute remains
unresolved.  The Labour Court may condone non-observance of
that time on good cause shown.
There is no appeal against an
award by a commissioner.  The only remedy available to a party
aggrieved by a decision of a
commissioner is to take the award on
review to the Labour Court.  These special rights, obligations,
principles, processes,
procedures, fora, and remedies collectively
constitute a special LRA dispensation.
[47]
[67]
If there is compliance with the stipulated timeframes, the
whole process may take place in less than a year.  Notably,
where
there has been compliance with those timeframes, the need to
apply the Prescription Act does not arise, simply because the
shortest
period for a debt to prescribe under it is three years.
I cannot think of any reason why the Prescription Act should be taken

to apply where, if there is compliance, it will find no application
because of the longer time periods that it allows.
[68]
Moreover, in the context of section 191 it is difficult to see
how the Prescription Act may be applied to a dispute that is referred

to conciliation.  For example, if a dispute is submitted to
conciliation more than three years after the date of dismissal
but
the employee establishes good cause in terms of section 191(2) of the
LRA, the CCMA would have a discretion to permit the referral.

Without this permission there can be no conciliation.  Without
conciliation the Labour Court would have no jurisdiction to
entertain
the matter and no other court would have jurisdiction.  That
would be the end of the matter.  The employee’s
rights
would be unenforceable.  Applying the Prescription Act to
section 191 disputes raises other difficulties.  These
include
who decides whether the dispute has prescribed or not.  The CCMA
does not have that power.  The only power that
it has under
section 191(2) is to condone the delay if good cause has been
established by the employee.  As mentioned earlier,
because
conciliation would not have occurred, no court would have
jurisdiction to entertain the matter and decide if the dispute
has
prescribed or not.
[69]
Second, while subject to good cause being shown, section
191(2) empowers the CCMA to condone late referrals to conciliation
and
section 191(11) authorises the Labour Court to condone delays in
referring conciliated disputes to it, the Prescription Act
does
not.   This may occur even where the delay is in excess of
three years.  In other words, the remedy of condonation
which
the LRA provides is something alien to the concept and scheme of the
Prescription Act.  Thus, the thesis that holds
that the
Prescription Act applies to litigation under the LRA seems to suggest
that after the expiry of the three year period,
the bargaining
council, CCMA, or Labour Court ceases to have competency to condone
the delay which is the competency that the LRA
specifically confers
on these fora.
[70]
This thesis fails to give heed to the provision of section
39(2) of the Constitution which enjoins the Court when interpreting
legislation
to promote the spirit, purport, and objects of the Bill
of Rights and section 3 of the LRA.  It is a construction which
has
the effect of preventing these important fora created by the LRA
from performing a function which the LRA authorises them to
undertake.
The effect of such an approach is to impede the
effective resolution of labour disputes, instead of promoting it.
Not
only does this approach limit the CCMA’s and the
Labour Court’s powers to permit late referral of the
disputes
but also takes away the employees’ rights to refer
their disputes to these fora.  This, to my mind, demonstrates
the
conflict between the two statutes and therefore in terms of
section 210 of the LRA, the latter Act must prevail.
[48]
In terms of the Prescription Act, once the three year guillotine
falls no court or body may condone the delay.  If the
running of
prescription is not interrupted before the expiry of three years,
nothing can be done.
[71]
This is because section 12(1) of the Prescription Act provides
that extinctive prescription commences to run as soon as the debt
is
due.  And the debt is due when it is immediately claimable by
the creditor and it is immediately payable by the debtor.
[49]
In
Truter
, it was stated that a debt is due in this sense when
the creditor acquires a complete cause of action for the recovery of
the debt,
that is, when the entire set of facts which the creditor
must prove in order to succeed with his or her claim against the
debtor
is in place.
[50]
That is to say, when everything has happened which would entitle the
creditor to institute action and to pursue his or her
claim.  In
terms of section 12(3) of the Prescription Act, a debt is not deemed
to be due until the creditor has, or ought
to have had, knowledge of
the identity of the debtor and the facts from which the debt arises.
This section requires knowledge
only of the material facts from which
a debt arises – it does not require knowledge of the legal
conclusion.
[51]
[72]
A case in point is an employee who is dismissed for
operational requirements in circumstances where there has been no
prior consultation
in terms of section 189 of the LRA thus prima
facie constituting unfair dismissal.  If three years later the
dismissed employee
becomes aware that in dismissing him the employer
had not complied with the provisions of section 189, he may,
simultaneously with
an application to condone the delay, refer the
dispute about the fairness of his dismissal to the CCMA or bargaining
council.
The CCMA or bargaining council will not be precluded
from conciliating a dispute if it decides to grant condonation.
The
fact that the employee acquired knowledge of the unfairness of
the dismissal three years later (that is the legal conclusion flowing

from the facts) will not preclude him from enforcing his rights under
the LRA.
[73]
But under the Prescription Act, unless an employee places
herself within the provisions of section 13, 14, or 15 of the
Prescription
Act, her claim for unfair dismissal would have
prescribed and become unenforceable.  This is so because, in
terms of sections
12(1) and (3) of the Prescription Act, prescription
begins to run as soon as the debt is due and the debt is due when the
creditor
has acquired knowledge of the identity of the debtor and the
facts from which the debt arises.  Section 12(3) of the
Prescription
Act does not require knowledge of the relevant legal
conclusion, that is to say the legal effect of the employer’s
failure
to conduct a pre-retrenchment
consultation as required by section 189 of the LRA.
Conclusion
[74]
This analysis shows that the provisions of the Prescription
Act are incapable of importation into the LRA, and they do not
therefore
apply to litigation under the LRA.  To try to apply
the Prescription Act to the litigation under the LRA is just like
trying
to fit square pegs into round holes, ignoring clear structural
differences between the two Acts.  Legal consequences flowing

from failure to comply with the time periods which each legislation
respectively stipulates, are not the same.  Failure to
comply
with the time periods stipulated by the LRA is not fatal as such
failure may be condoned on good cause shown.  Under
the
Prescription Act a creditor loses a right to enforce its claim once
the claim has prescribed.  It does not provide a mechanism

through which the lost right may be reclaimed.  These
differences between the two statutes are, in my view, sufficiently
material to constitute inconsistency as
contemplated in section 16(1) of the Prescription Act.
[75]
It follows therefore that the appeal must succeed and the
orders of the Labour Court and Labour Appeal Court should be set
aside.
Order
[76]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders of the Labour Court and Labour Appeal Court are set aside.
4.
The order of the Labour Court is replaced with the following:
“The special plea of prescription is dismissed.”
5.
There is no order as to costs in the Labour Court, Labour Appeal
Court, and in this Court
ZONDO DCJ: (Jafta J
and Zondi AJ and Mogoeng CJ concurring)
Introduction
[77]
This is yet another case
[52]
that has come before this Court in which the issue we are called upon
to decide is whether the Prescription Act and the prescription

periods it prescribes apply to unfair dismissal claims governed by
the dismissal dispute resolution system under the LRA.  The

applicants contend that the Prescription Act does not apply to unfair
dismissal claims or disputes.  The respondent disputes
this and
contends that the Prescription Act does apply.
[78]
I have read the judgments prepared by my Colleagues, Zondi AJ
(first judgment) and Kollapen AJ (third judgment).

The first judgment concludes that that leave to appeal should be
granted and the appeal upheld.  I concur in the first judgment

but write separately to bring another perspective to the matter and
give additional reasons for the conclusion that the Prescription
Act
does not apply to unfair dismissal claims.
[79]
Labour legislation, including the LRA, was a response, in part
at least, to the inequity against workers inherent in the common law

employment relationship.  Labour legislation was intended to
bring about a better dispensation which would seek to protect
and
promote the interests of both employers and employees.  In other
words, labour legislation sought to bring about a new
employment
regime between employers and employees that would seek to strike a
balance between the interests of employers and those
of employees.
[80]
The right not to be unfairly dismissed is conferred by section
185 of the LRA on every employee.
[53]
The enactment of the LRA marked the first time in South Africa’s
history that a statute expressly conferred upon
employees the right
not to be unfairly dismissed.  The Labour Relations Act No 28 of
1956 as amended, (the 1956 LRA),
the precursor to the
current LRA – made provision for an unfair labour practice the
definition of which was  broad enough
in effect to include the
right not to be unfairly dismissed but it made no express mention of
a right not to be unfairly dismissed.
The provisions of the
1956 LRA conferred upon the Industrial Court an extensive unfair
labour practice jurisdiction which that
Court used most effectively
to create labour law jurisprudence on unfair dismissal some of which
is reflected in the LRA.
[54]
[81]
The introduction of the concept of an unfair labour practice
placed the principle of fairness at the centre of our law of
employment.
That included making fairness a requirement for a
dismissal.  The termination of employment could in effect be
reversed if
it was found to be unfair despite the fact that it may
have been lawful.  Special provisions were enacted for the
enforcement
of this right not to be subjected to an unfair labour
practice.  Those special provisions encompassed a special
dispute resolution
system that would be based on fairness to both the
employer and employee and one that would not be rigid.  The
dispute resolution
system that applies to unfair dismissal claims
under the LRA is a self-contained system of rights and obligations
with specialised
processes, fora and principles enforceable only
under the LRA.  It is one that seeks to strike a balance between
the interests
of employers and those of employees.
[82]
The National Economic Development Labour Council Act
[55]
created the National Economic Development Labour Advisory Council
(NEDLAC).  This body was established to enable Organised

Business, Organised Labour and Government to negotiate and reach
agreement on matters that affected them so as to advance economic

development in the country.
[56]
The idea was that all these stakeholders would reach “deals”
in this body which would be good for the country.
[57]
The “deals” they would reach could include “deals”
on legislation that would be good for the economic
development of the
country.  Those “deals” on legislation would then be
referred to Parliament to enact.
Obviously, the idea was not
that Parliament would act as a rubber stamp for what had been agreed
at NEDLAC.  Nevertheless,
it was hoped that, when dealing with a
Bill that sought to capture a “deal” reached at NEDLAC,
Parliament would appreciate
the special and significant role of
NEDLAC in the economic development of the country.
[58]
[83]
In 1994 the Minister of Labour appointed a Task Team whose
mandate was to draft a memorandum in the form of a Bill that would
ultimately
be passed as the Labour Relations Act for the new
democratic state.  The Task Team consisted of labour lawyers who
were found
acceptable to all stakeholders.  That Task Team
produced a document in Bill-form together with an explanatory
memorandum which
explained the main features of the “Bill”.
The Minister of Labour referred the “Bill” and memorandum

to NEDLAC to enable Organised Business, Organised Labour and
Government to use it as a basis for negotiation.
[59]
[84]
Extensive negotiations ensued at NEDLAC which culminated in a
“deal” that was reached among all the stakeholders.

That “deal” was in the form of the Labour Relations
Bill.  It included the unfair dismissal dispute resolution

system which is reflected in the LRA.  The “deal”,
as agreed to at NEDLAC, was then handed over to Parliament
which had
its usual debates on the Bill and passed it without any substantial
changes, particularly in regard to the unfair dismissal
dispute
resolution system.  Therefore, what we see in the LRA is
substantially the “package” or “deal”
that
was agreed to at NEDLAC among Organised Business, Organised Labour
and Government.  Organised Business, Organised Labour
and
Government each made various compromises to achieve this “deal”
or “package”.
Features of the LRA “deal”
or “package”
[85]
The “package” included not only the right not to
be unfairly dismissed that was conferred on employees – a right

that did not exist before – but also the onus to prove that a
dismissal is fair was put on the employer.  At common
law,
reinstatement was not competent in an employment relationship.
The new dispensation that was aimed at striking a balance
between the
interests of employers and those of employees came with a new rule on
reinstatement.  The rule on reinstatement
favoured workers.
Subject to certain exceptions, reinstatement was made the preferred
remedy for an employee who has been
dismissed substantively
unfairly.  However, the new system had a rule that favoured
employers as well.  That was the
rule that reinstatement would
not be competent in the case of an employee whose dismissal is found
to be unfair only because no
fair procedure was followed.  This
was one of the complaints by employers in the dispensation under the
1956 LRA.  The
complaint was that an employee could be
reinstated by a court even if his or her dismissal was found to have
been for a good reason
at a substantive level as long as there had
been some procedural defect.  The idea was that in such cases an
employee should
receive compensation and not reinstatement.
[86]
At NEDLAC a deal was struck that employees would get
reinstatement as a preferred remedy for substantively unfair
dismissals and
employers would not be forced to reinstate employees
in respect of whom there was fair reason for dismissal but a fair
procedure
had not been followed.  The two rules were part of the
“deal” or “package” aimed at striking a fair

balance between the interests of both employers and employees.
As part of the “package”, the LRA included various
rules
regarding compensation for an unfair dismissal in cases where
reinstatement is not competent or practicable.  The compensation

was limited to the equivalent of 12 or 24 months’ remuneration
of an employee, depending on the type of dismissal involved.
If
the dismissal was for operational requirements, the employer would
have to pay an employee severance pay, another benefit
that employees
did not enjoy at common law.
[60]
[87]
That the LRA seeks to strike a balance between the interests
of employers and those of employees has already been acknowledged by

this Court in
Sidumo.
[61]
In that case this Court said:
“The
Constitution and the LRA seek to redress the power imbalance between
employees and employers.  The rights presently
enjoyed by
employees were hard won and followed years of intense and often grim
struggle by workers and their organisations.”
[62]
[88]
Since it is the LRA that confers on the employee the right not
to be unfairly dismissed, it follows that it is the LRA that provides

for the enforcement of that right, the times within which unfair
dismissal claims are enforced and the processes and fora created
by
it.  It cannot be that a right acquired under the LRA is lost
under the Prescription Act, unless the LRA specifically
so
provides.  The LRA makes no such provision.
[89]
The dispute resolution system under the LRA stipulates the
timeframes within which an unfair dismissal dispute must be referred
to the relevant forum.  It provides, in effect, that, if an
employee fails to refer an unfair dismissal dispute to conciliation

within the period, the referral will only be accepted if there is
good cause for the failure to refer it within the period.
Under
the LRA an employee forfeits his or her unfair dismissal claim when
he or she fails to refer the dismissal dispute to the
correct forum
within the relevant stipulated period and has no “good cause”
for the failure.  These provisions
might not have the certainty
of the common law or of the Prescription Act but they do provide the
flexibility that is required
in order to ensure that a balance is
struck between the interests of employers and those of employees.
[90]
If the drafters of the LRA and Parliament wanted a regime that
included the Prescription Act, all they would have had to do
to
achieve that would have been to prefix the relevant provisions
relating to condonation and good cause with the phrase: “subject

to the Prescription Act”.  They deliberately did not
do so.  That was a legislative choice not to add the

prescription periods of the Prescription Act to the LRA.
For example, section 191(1)(b) provides that the referral of
a
dismissal dispute to conciliation must be made within 30 days from
the date of dismissal.  Then section 191(2) says:
“[i]f
the employee shows good cause at
any time
, the council or the
Commission
may permit
the employee to refer the dispute after
the relevant time limit in subsection (1) has expired”.
[91]
With regard to the referral of a relevant dismissal dispute to
the Labour Court for adjudication, section 191(11)(a) and (b)

read:
“
(a)
The referral, in terms of subsection (5) (b), of a
dispute
to the Labour Court for adjudication, must be
made within 90 days after the
council
or
(as the case may be) the commissioner has certified that the
dispute
remains unresolved.
(b)
However, the Labour Court may condone non-observance of that
timeframe on good cause
shown.”
The provision of section 191(11)(b)
confers upon the Court a very wide power to condone non-observance of
the timeframe stipulated
in section 191(11)(a).  There is no
indication whatsoever in section 191(11)(b) that that power conferred
upon the Labour Court
is limited in any way in the sense that it
is subject to the Prescription Act.  The approach that says
that the Prescription Act
applies to unfair dismissal claims
under the LRA means that a provision such as section 191(11)(b) is
subject to the Prescription Act
and yet the phrase “subject
to the Prescription Act” is conspicuous by its absence in
section 191(11)(b).
[92]
The provisions of the dispute resolution system of the LRA
seek to do things differently from how the common law sought to do
things
and from the way the Prescription Act seeks to do
things.  The Prescription Act had long been on the statute
book
when the LRA was passed.  The drafters of the LRA were
aware of the Prescription Act and the regime for which it
provides.
It was constitutionally competent for Parliament,
when it passed the LRA, to take the attitude that, in regard to this
special
category of disputes, it would put in place a regime that
differed from the regime in the Prescription Act.
[93]
If the drafters had intended that, notwithstanding the fact
that section 191(11)(a) and (b) mean that an employee may not refer a

dismissal dispute to the Labour Court after the expiry of the
90 day period stipulated therein if he or she is unable
to show
good cause, such a dismissal dispute is also subject to the
Prescription Act, they would have included the phrase
“subject
to the Prescription  Act”.  In that case they would
have formulated section 191(11)(b) in these
terms:
“(b) However,
subject to the Prescription Act,
the Labour Court may condone
non observance of that timeframe.”
They did not frame section 191(11)(b) in
these terms because it was never intended that the prescription
periods stipulated in the
Prescription Act should have any role to
play in the dismissal dispute resolution dispensation under the LRA.
[94]
Section 191(2) confers upon the relevant bargaining council or
the CCMA the power, “[i]f the employee shows good cause at any

time” — which means even after three years —“to
permit the employee to refer the dispute
after the relevant time
limit
in subsection (1) has expired”.  That means that
this provision gives the CCMA or the bargaining council jurisdiction

or power to permit an employee to refer an unfair dismissal dispute
at any time outside the 30 day period provided the employee

shows good cause.  The provision does not limit the employee to
showing good cause only within the three year period prescribed
by
the Prescription Act.  In terms of the provision an employee may
show good cause “at any time”.  The phrase
“at
any time” includes at any time after the expiry of three years
from the date of dismissal provided good cause is
shown for the
delay.
[95]
The approach that says that unfair dismissal claims are
subject to the Prescription Act actually is a result of reading
section 191(2)
and 191(11)(b) as meaning that the CCMA or a
bargaining council under section 191(2), and, the Labour Court
under section 191(11)(b)
have no jurisdiction to condone a
referral of an unfair dismissal dispute after the expiry of three
years stipulated in the Prescription Act.
If it was
intended to limit the jurisdiction of those tribunals to condone late
referrals of unfair dismissal disputes to three
years, and that,
after that, they could not permit or condone a late referral of an
unfair dismissal dispute, there would have
been a provision in the
LRA that says so expressly.  The ousting of the jurisdiction of
a court is not to be lightly inferred.
[96]
I am of the view that, even after three years, the CCMA or a
bargaining council or the Labour Court does have jurisdiction to
permit
or condone a late referral of an unfair dismissal dispute if
the employee can show good cause.  There may be a temptation to

think that there will be no cases where an employee fails over three
years to refer an unfair dismissal dispute to the CCMA or
to a
bargaining council or to the Labour Court and has good cause and
that, therefore, there is no problem if one adopts the approach
that
the Prescription Act is applicable to unfair dismissal disputes.
However, there are situations where an employee may
refer an unfair
dismissal dispute to conciliation or arbitration or adjudication
after the expiry of three years and he or she
has good cause for the
delay.  I refer below to examples of such cases that are to be
found in our law reports.
Steenkamp
[63]
[97]
A good example is
Steenkamp
where, for years, an
employee wrongly or rightly believes that he or she is entitled to
pursue a claim on the basis of a cause of
action other than an unfair
dismissal claim and later gets a court decision that says that he or
she has no claim under that cause
of action and the claim he or she
should have pursued is one under the LRA.  By that time three
years may have lapsed.
In such a case that employee would be
able to refer the unfair dismissal dispute to the CCMA or to the
relevant bargaining council
for conciliation and apply for
condonation for referring the unfair dismissal dispute to
conciliation or arbitration or adjudication
after the lapse of such a
long time e.g. three years from the date of dismissal.
[98]
In
Steenkamp
employees who were dismissed challenged
the validity and lawfulness of their dismissal in the Labour Court
and sought an order
that their dismissals were invalid and of no
force or effect.  They also sought an order of reinstatement.
They did
not challenge the fairness of their dismissals.
Therefore, they did not refer an unfair dismissal dispute to
conciliation
under the LRA.  There was precedent in both the
Labour Court and the Labour Appeal Court upholding
this approach
they were taking.  However, when the
Labour Appeal Court dealt with their matter, it overruled
its previous decision
that they had been following as well as the
decision of the Labour Court.  When the matter came to
this Court, this Court
held that the approach they had
followed was wrong and was not open to them and they should have
followed the unfair dismissal
route.  It, accordingly, dismissed
the appeal.  By this time a period of more than three years had
lapsed.  This
meant that, if the Prescription Act applied
to unfair dismissal claims, the employer could raise prescription
when they sought
to refer unfair dismissal disputes to conciliation.
[99]
In a case such as
Steenkamp
an employee would say that,
until the date of this Court’s judgment in that case, he or she
had
bona fide
believed that he or she did not have to refer an
unfair dismissal dispute to a conciliation process because, based on
decisions
of the Labour Court and Labour Appeal Court,
she or he believed that he or she could obtain from the Labour Court

the relief that she or he wanted.  That is an order that the
dismissal was unlawful, invalid and of no force and effect and

granting reinstatement.  He or she would say that it was only
after this Court had handed down its judgment in the matter
that he
or she realised that the route he or she had followed was not
available to him or her in law and that he or she had to
refer the
dispute to a conciliation process.
[100]
Provided that the employee acted without delay after the
delivery of the judgment of this Court clarifying the position, there
are
good prospects that the CCMA or bargaining council considering
his or her condonation application would find that he or she had

shown good cause for the delay.  In that event, it would condone
the delay or permit him or her to refer the unfair dismissal
dispute
to conciliation even after the expiry of three years from the date of
his or her dismissal.  That is what can happen
under the LRA and
its dispute resolution dispensation.  However, under the
Prescription Act, once the prescription period
of three years
has expired, the claim has prescribed and it is “dead”,
no matter how plausible the creditor’s
explanation for the
failure to institute the action and serve the summons within the
applicable prescription period.
[101]
In
Steenkamp
this Court was alive to the kind of
situation where an employee
bona fide
believes for a long time
that he or she does not need to refer an unfair dismissal dispute to
a conciliation process until this
Court delivers a judgment that
shows that he or she does need to do so.  After this Court had
concluded in
Steenkamp
that the employees’ appeal had to
fail, it said:
“Does this
mean that this is the end of the road for the employees in this
case?  Not necessarily.  Until the decision
of this Court,
the employees acted on the strength of decisions of the Labour Court
and Labour Appeal Court whose effect was that
in this type of case it
was open to them not to use the dispute resolution mechanisms of the
LRA and not to seek remedies provided
for in section 189A but instead
to simply seek orders declaring their dismissals invalid.  It is
arguably open to them to
seek condonation and pursue remedies under
the LRA.  Obviously, Edcon would be entitled to oppose
that.”
[64]
Steenkamp
is not an isolated case
in which an employee was required to refer a dismissal dispute to a
conciliation process after the expiry
of three years and possibly had
good cause for referring it after the expiry of such a long time from
the date of dismissal.
Chirwa
[65]
[102]
Ms Chirwa was dismissed from the Transnet Pension Fund in
2002.  She had initially referred her dismissal dispute to the
CCMA
for conciliation.  Conciliation failed.  From then she
had 90 days within which to request that her unfair dismissal dispute

be arbitrated.  It would appear that that was an unfair
dismissal dispute that under the LRA would have had to be arbitrated

rather than adjudicated.  Ms Chirwa then decided not to pursue
the matter under the LRA dispute resolution system.  Instead,

she decided to launch a review application in the High Court
under the Promotion of Administrative Justice Act
[66]
(PAJA) on the basis that her dismissal constituted an administrative
action.  That would have ordinarily meant that her review

application could be decided by the High Court.  If her review
application succeeded, she would, in effect, have achieved

reinstatement.
[103]
Ms Chirwa’s review application failed in the High
Court.  That Court said that it did not have jurisdiction
because this
was a matter which should have been pursued as an unfair
dismissal claim under the LRA.  She appealed to this Court.

This Court held that her dismissal did not constitute an
administrative action and she should have pursued her case as an
unfair
dismissal claim under the LRA.  Ms Chirwa had been
dismissed in 2002.  Her case was heard by this Court in March
2007
and judgment was handed down in November 2007.  That was
about five years from the date of dismissal.  However, since
the
failure of the conciliation process, the period must have been at
least more than four years.
[104]
This Court was alive to the fact that the time within which Ms
Chirwa was required to have requested that her dispute be arbitrated

under the LRA had long expired and she would need to apply for
condonation.  This Court did not think that her unfair dismissal

claim had prescribed under the Prescription Act.  Indeed, this
Court thought that an unfair dismissal claim was only subject
to the
periods provided for in the LRA and condonation for delays could be
granted when there was good cause.  That is why
this Court said
through Skweyiya J at the end of its judgment:
“Although on
her pleadings the applicant appears to be out of court, she is not
left without a remedy.  She must follow
the route created by the
LRA and exhaust all the remedies that are still available to her
within that specialised framework.
A condonation procedure is
provided for by section 136(1) of the LRA, and thus the applicant may
still pursue the route of arbitration.
If she is dissatisfied
with the outcome, she has the further option of pursuing the review
of the arbitration award in the Labour
Court, in terms of section 145
of the LRA.”
[67]
Fredericks
[68]
and Gcaba
[69]
[105]
Fredericks
and
Gcaba
are cases in which
employees could easily have found themselves having to refer unfair
dismissal disputes to conciliation or arbitration
or adjudication
under the LRA dispute resolution system after the expiry of a period
of three years because they had first pursued
the High Court
route on the basis that they sought to vindicate their constitutional
rights and not their rights under the
LRA.  Fortunately for the
employees in those cases, they did not have to deal with that
situation.
Intervalve
[70]
[106]
Intervalve
is another case where employees may have had
to refer their dismissal dispute to a conciliation process after the
expiry of three
years.  The employees involved in
Intervalve
whose dismissal disputes were not referred by their union to the
conciliation process may have had to refer their dismissal disputes

to conciliation after the expiry of three years if they referred the
disputes after the judgment of this Court.  This Court

thought that, even after the expiry of such a long time, the
employees could still refer their dismissal disputes to conciliation

and apply for condonation.  This appears from what this Court
said through Cameron J:
“The
dissenting judgment suggests that the approach favoured here is
overly restrictive and formalistic and will impede the
effective
resolution of labour disputes. This seems undue.  A clear
requirement that a union must include every employer in
conciliation
proceedings is likely to lead to less, not more, litigation.  The
dissent rightly notes that in a complex working
relationship it may
be difficult to determine the true employer of each employee.  But
the LRA offers condonation if this
complexity results in missed
deadlines.  Indeed, condonation for the late referral involving
Intervalve and BHR was available
here, and it is not clear why NUMSA
did not seek to review the Bargaining Council’s decision in
August 2010 to deny it condonation.
NUMSA may indeed still seek
to review that decision on the basis that, until the decision of this
Court, it believed that
it was entitled to have the companies joined.
Nor is condonation the only recourse for
the employees who, through no fault of their own, will be unable to
join the action against
Steinmüller.  NUMSA failed to act
promptly at various points during the litigation.  That may make
it possible for
the employees of Intervalve and BHR to seek
recompense from it on the basis of negligent mismanagement of their
claim.”
[71]
CMI v September
[72]
[107]
This is a case where employees and their employer were in
dispute about whether the Labour Court had jurisdiction to
adjudicate
an alleged constructive dismissal dispute or an alleged
automatically unfair dismissal dispute when it granted a default
judgment
against the employer, CMI Business Enterprises (CMI).
This issue arose in circumstances where employees had referred to the

CCMA for conciliation a dispute they described as “unfair
discrimination S10 of the Employment Equity Act” but, after
the
conciliation process had failed, they referred to the Labour Court
for adjudication a dispute concerning an alleged constructive

dismissal or an automatically unfair dismissal.
[108]
In seeking a rescission of the default judgment, the employer
took the point that no constructive dismissal dispute or
automatically
unfair dismissal dispute had been referred to the CCMA
for conciliation and, therefore, the Labour Court had no
jurisdiction
to adjudicate such a dispute.  The employees
contended that the Labour Court did have jurisdiction because at
the conciliation
meeting the true dispute, namely, constructive
dismissal, had been discussed.  The Labour Court upheld the
employees’
contention and held that, therefore, it had had
jurisdiction to grant the default judgment.  It dismissed CMI’s
rescission
application.  In a subsequent appeal to the
Labour Appeal Court, that Court upheld CMI’s
contention that the
Labour Court had not had jurisdiction to
grant the default judgment because no dismissal dispute had been
referred to the
conciliation process and reversed the decision of the
Labour Court.
[109]
The matter then came before this Court.  The employees’
claim for constructive dismissal or automatically unfair dismissal

was based on their allegation that they had resigned from CMI’s
employ on 13 September 2011 because their continued employment
had
become intolerable as a result of the racist treatment to which the
employer had allegedly subjected them.  Had this Court
decided
that no dismissal dispute of any kind was referred to the CCMA for
conciliation and that, therefore, the Labour Court
had not had
jurisdiction to grant the default judgment against the employer, the
question that would have arisen for the parties
would have been this:
as the period of three years since the alleged resignation had
lapsed, could the employees still have referred
their unfair
dismissal claim to the CCMA for conciliation if they could show good
cause or could they not do so because, in the
meantime, their unfair
dismissal claim had prescribed under the Prescription Act?
In my view they would still have been
able to refer their dismissal
dispute if they could show good cause.
[110]
The cases referred to above show that there are cases in which
employees’ failure over three years to refer their unfair
dismissal
disputes to conciliation or to arbitration or adjudication
could be due to a
bona fide
error of law.  The cases show
some of the instances where employees who had failed over three years
to refer their unfair
dismissal disputes to conciliation could
possibly show good cause as required by the LRA for the referral of
their unfair dismissal
disputes after the expiry of three years since
dismissal.  In those cases the CCMA or relevant bargaining
council would be
entitled to permit the employee in terms of
section 191(2) to refer the dispute to conciliation after the
expiry of three
years if the Prescription Act did not apply to
unfair dismissal disputes under the LRA and if good cause was shown.
However, that employee’s claim would be “killed” if
the Prescription Act applied to such claims or disputes
because,
under the Prescription Act, if the prescription period of three
years has expired, the claim has prescribed and is
“dead”
and the presence or absence of good cause for the delay is
irrelevant.  Therefore, applying the LRA rather
than the
Prescription Act is the right approach.
Difficulties of interpretation
[111]
The proposition that the Prescription Act applies to
unfair dismissal disputes under the LRA suggests that the
prescription
period prescribed by the Prescription Act begins to
run from the date of dismissal (i.e. that is when the debt is said to
be due) and is interrupted by the service on the employer of the
referral document referring the dismissal dispute to the process
of
conciliation.  One of the difficulties with this is that, when,
under the Prescription Act, it is said that a debt
is due, it
means that the debt or claim is enforceable and the creditor may
immediately institute court proceedings to recover
it.  Yet,
under the LRA no court proceedings may be instituted to obtain any
order of reinstatement or for the payment of
compensation until the
conciliation process has failed.  The failure of a conciliation
process is proved by the issuing of
a certificate by a commissioner
to the effect that the dispute remains unresolved or by the expiry of
30 days (or any agreed extended
period) after the receipt of the
referral of the dispute to the conciliation process.
[112]
In
Intervalve
this Court held that the referral of an
unfair dismissal dispute to conciliation is a jurisdictional
requirement that must be met
before the Labour Court may acquire
jurisdiction to adjudicate a dismissal dispute.  This also
applies to a dismissal that
may need to be referred to arbitration
after the conciliation process.  This, therefore, means that at
the time of the referral
of a dismissal dispute to conciliation, the
CCMA does not have jurisdiction to arbitrate the dispute nor does the
Labour Court
have jurisdiction at that stage to adjudicate the
dispute if it is a dispute that could otherwise end up having to be
referred
to the Labour Court for adjudication.
[113]
If, under the Prescription Act, a creditor instituted,
within the relevant prescription period, an action in a court that
does
not have jurisdiction to adjudicate his or her claim, that
action would not interrupt prescription.  It is difficult to see

why then, when it comes to unfair dismissal claims, referring a
dismissal claim to the CCMA, a body that has no competence or
jurisdiction to adjudicate the claim at any stage before, the
position should be different.  Since the CCMA cannot adjudicate

the claim, lodging and serving a referral document with the CCMA
cannot interrupt prescription.  Prescription gets interrupted

when the court process that is served relates to an action that has
been instituted in a court that has jurisdiction.
[114]
Another difficulty with the approach that the Prescription Act
applies to unfair dismissal disputes and that the referral of a
dismissal
dispute to conciliation interrupts prescription is that
prescription is interrupted by the referral of the dispute to
conciliation
but, if conciliation fails and the employee is required
to refer the dispute to, for example, the Labour Court for
adjudication
within 90 days of the failure of conciliation but
fails over three years to do so, his claim would not prescribe.
In
such a case the employee would forfeit his unfair dismissal claim
only on the terms of the LRA.
[73]
That is if he or she fails to show good cause for the failure to
refer the dispute to the Labour Court within the period
required by
the LRA.  The LRA requires an employee to refer such a dismissal
dispute to the Labour Court within 90 days from
the date of the
issuing of the certificate that says that the dispute remains
unresolved or within 90 days from the date when the
CCMA or
bargaining council received the referral of the dispute to
conciliation.
Interference with an agreed balance
[115]
Applying the Prescription Act to unfair dismissal claims under
the LRA would introduce into the LRA dispute resolution dispensation

a foreign rule that operates under a different statute.  The
result would be that this foreign rule would tamper with a
specialised
dispute resolution dispensation agreed to between
employers and workers that seeks to strike some balance between the
parties’
competing interests.  That would create a system
that is more advantageous to employers than to employees.  The
foreign
rule would have the effect of taking away from employees’
rights and benefits, including the ability to pursue unfair dismissal

claims beyond three years in those cases where there is good cause
for failing to refer the dispute to the relevant forum within
the
period stipulated in the LRA.  Invoking this foreign rule into
the LRA tampers with or disturbs the balance struck under
the LRA at
NEDLAC and approved by Parliament.  Invoking the Prescription
Act disturbs that balance in favour of employers
and to the detriment
of workers.
Benefits of the LRA regime
[116]
Under the LRA unfair dismissal dispensation, there are
advantages for both employers and the employees.  An employer
may be
able to make the unfair dismissal claim of an employee go away
in a shorter period of time than the time provided for in the
Prescription
Act.  In that way the LRA is able to give an
employer certainty much earlier in regard to such a claim if the
employee fails
to refer the dispute within the stipulated period and
fails to show good cause.
[74]
This may be within one year.  This disadvantages employees
because it makes it possible for them to forfeit their unfair

dismissal claims much earlier than otherwise would have been the case
under the Prescription Act.  However, the same provision
in the
LRA also makes it possible for an employee to pursue his or her
unfair dismissal claim after the expiry of three years from
the date
of dismissal if he or she can show good cause.
[75]
This is disadvantageous to employers as it takes long before they
have certainty about that unfair dismissal claim.
Under the
Prescription Act, once the period of three years has expired, the
claim is forfeited regardless of whether there is good
cause or
not.
[76]
Under the LRA dispensation there is something for both employers and
employees.  This example illustrates that the LRA
unfair
dismissal dispensation seeks to strike a fair balance between the
interests of employers and those of employees.  This
is part of
the “deal” or “package” agreed to at NEDLAC
among Organised Business, Organised Labour and Government.
[117]
That the LRA dispute resolution system is a “package”
or “deal” or a special dispensation has been decided
by
this Court.  In
Steenkamp
this Court said:
“[105]
The LRA created special rights and obligations that did not exist at
common law.  One right is every employee’s
right not to be
unfairly dismissed which is provided for in section 185.
The
LRA also created principles applicable to such rights, special
processes and fora for the enforcement of those rights.
The
principles, processes, procedures and fora were specially created for
the enforcement of the special rights and obligations
created in the
LRA
.  Indeed, the LRA even provides for special remedies for
the enforcement of those rights and obligations.  The special

remedies include interdicts, reinstatement and the award of
compensation in appropriate cases.  These special rights,
obligations,
principles, processes, procedures, fora and remedies
constitute a special LRA dispensation”
[77]
[118]
Bringing the foreign rule into the LRA system takes away from
the workers a benefit which they had been given as part of the
“deal”.
In
Steenkamp
the Court said:
“[116]
[T]hrough the LRA the Legislature sought to create a dispensation
that would be fair to both employers and employees,
having regard to
all the circumstances, including the power imbalance between them.
[117]
Furthermore, the fairness required by the LRA dictates that the
relief that is granted by the Labour Court
or an arbitrator for an
unfair dismissal must take account of all the relevant circumstances
of the case and the interests of both
the employer and employee.
As a result of this approach, there is flexibility in the relief that
may be granted in a particular
case.  The remedy may be
reinstatement with or without retrospectivity.  It may be an
award of compensation.  The
compensation is capped at 12 months’
remuneration or 24 months’ remuneration, depending on whether
it is for an automatically
unfair dismissal or a substantively or
procedurally unfair dismissal.  If the dismissal is
substantively fair but procedurally
unfair, reinstatement is not
competent but an award of compensation is competent.
[118] All of these
enable the Court or an arbitrator to grant relief for unfair
dismissal that is just and equitable to both the
employer and the
employee in a particular case.  The common law which gives us
the concept of the invalidity of a dismissal
is rigid.  It says
that if a dismissal is unlawful and invalid, the employee is treated
as never having been dismissed irrespective
of whether the only
problem with the dismissal was some minor procedural non-compliance.
It says that in such a case the
employer must pay the employee
the whole backpay even if, substantively, the employer had a good and
fair reason to dismiss the
employee.
[119] Whereas the
LRA requires a number of factors to be taken into account in deciding
what the appropriate remedy is for an unfair
dismissal including an
automatically unfair dismissal, the common law’s remedy of an
invalid dismissal takes into account
one fact and one fact only.
That is that the dismissal was in breach of statutory provisions.
Under the LRA if the
remedy that is considered fair is compensation,
the Court grants compensation.  The compensation is limited to
12 months’
or 24 months’ remuneration, as the case
may be, in terms of section 194 of the LRA.  Under the LRA if
the Court thinks
reinstatement would be an appropriate remedy, it
will grant reinstatement.  When considering the flexibility
required by the
LRA in the grant of a remedy for unfair dismissal,
one thinks of the flexibility in regard to a remedy that section
172(1)(b) of
our Constitution contemplates.  Section 172(1)(b)
confers on the courts the power to make “any order that is just

and equitable” when dealing with constitutional matters within
their powers.  I make these points to show that the exclusion
of
the remedy of an invalid dismissal under the LRA was deliberate.
It did not fit into the dispensation of the LRA which
required
flexibility so as to achieve fairness and equity between employer and
employee in each case.”
[78]
[119]
Bringing the Prescription Act into the unfair dismissal claims
under the LRA gives employers two “sledgehammers” capable

of “killing” an employee’s unfair dismissal claim
in circumstances where the “deal” reached at NEDLAC
among
all the stakeholders was that the employer would have only one
“sledgehammer”, namely the LRA “sledgehammer”.

In other words, that an employer could “kill” an
employee’s unfair dismissal claim for a delay in referring it

by showing that the employee had no good cause.  If an employee
referred a dismissal dispute to the relevant forum outside
the
stipulated period but before the expiry of three years, the employer
would use an LRA “sledgehammer” to try and
“kill”
the claim by taking the point that there was no good cause shown for
the delay.  If the claim was referred
after the expiry of the
three year period provided for in the Prescription Act, the
employer could invoke the Prescription
Act “sledgehammer”
and take the point that the claim has prescribed and, with or without
good cause, the claim is “dead”.
[120]
If one takes the approach that the Prescription Act has no
application to unfair dismissal claims, the employer can only rely
upon
the absence of good cause to “kill” an unfair
dismissal claim on grounds of delay and he or she cannot rely upon
the
Prescription Act as well.  Therefore, bringing the
Prescription Act into the unfair dismissal claims unduly advantages
employers
to the detriment of employees, tipping the scale, once
again, in favour of employers.  The approach that says that the
Prescription
Act applies to unfair dismissal claims under the LRA
allows employers to use the LRA when it suits them to “kill”
employees’
unfair dismissal claims and to use the Prescription
Act when using the LRA does not suit them and it suits them to use
the Prescription
Act.  That is what I call the LRA
“sledgehammer” and the Prescription Act “sledgehammer”.
[121]
There is a presumption in our law that, where a statute
creates new rights that did not exist before and provides remedies
for the
breach of those rights, those are the only remedies that can
be granted in the case of the infringement of those rights.  I

think that it can also be said that, where a statute creates new
rights and provides for a special way in which those rights can
be
lost, those special ways in which they can be lost are the only ways
in which those rights can be lost.  Where a right
is created by
statute A and statute A provides how that right is lost or forfeited,
you cannot invoke a way of losing rights or
forfeiting rights
provided for in statute B to say that rights under statute A have
been lost.  The right not to be unfairly
dismissed created by
section 85 of the LRA is a special right that did not exist at common
law.  The LRA has provisions governing
how, where and when an
unfair dismissal claim may be enforced and how an employee forfeits
it.  There is no reason why it
should be said that we should
look at the Prescription Act to see how an employee forfeits an
unfair dismissal claim when the LRA
has a special provision on how an
employee forfeits his or her unfair dismissal claim.
[122]
In this case the Prescription Act is a general statute.  The
LRA is a specific statute dealing specifically with, among others,

the right not to be unfairly dismissed and how unfair dismissal
claims are enforced and lost.  So, that alone should be enough

to justify the conclusion that a specific statute applies to the
exclusion of a general statute.
Application of Sidumo to the present
case
[123]
In
Sidumo
[79]
this Court had to decide whether it would be the LRA review regime or
the PAJA review regime that would govern review applications
relating
to CCMA arbitration awards.  It had to decide this issue within
the following context. PAJA was enacted to give effect
to section 33
of the Constitution which provided that everyone had a right to
administrative action that is lawful, reasonable
and procedurally
fair.  This Court decided in
Sidumo
that a CCMA
arbitration award is administrative action.  Ordinarily, this
Court’s conclusion that a CCMA arbitration
award was
administrative action would have meant that such an award would be
reviewed under PAJA.  Yet, section 145 of
the LRA
specifically provided that a CCMA arbitration award was to be
reviewed under that provision in the LRA.  The grounds
upon
which a CCMA award could be reviewed under section 145 of the
LRA and the grounds upon which administrative action could
be
reviewed under PAJA differed, to some extent.  Also, under
section 145 the period within which a review application of
a CCMA
award had to be brought was shorter than the period applicable under
PAJA.
[124]
The LRA required review applications to be lodged within six
weeks of the handing down of arbitration awards.
[80]
PAJA required review applications to be lodged within 180 days
of the making of the administrative action or of the
applicant
gaining knowledge of the administrative action.  So, obviously,
if it was the LRA regime that would apply, then
the six-week period
would be applicable.  If it was PAJA that would apply, then the
180 day period would be applicable.
Also, the grounds of
review provided for under section 145 of the LRA were not exactly the
same as those applicable under PAJA
even though there was much
overlap.  The question that faced this Court was, therefore,
whether CCMA arbitration awards –
which are administrative
actions – had to be reviewed under section 145 of the LRA or
under PAJA.
[125]
Faced with this situation, this Court referred to the fact
that in
Bato Star
[81]
it had left open the question of what the position was in respect of
“causes of administrative action that did not fall within
the
scope of PAJA”.  This Court then said:
“Does this
mean that review provisions of PAJA are automatically applicable in
the present context? To answer this question
it is necessary to deal
with the LRA and its applicable provisions in relation to PAJA.
The LRA is specialised negotiated national legislation giving
effect to the right to fair labour practices. . . .  Section 145

was purposefully designed as was the entire dispute resolution
framework of the LRA.
”
[82]
[126]
This Court said later in
Sidumo
:
“[95]    The Supreme Court of Appeal was of the
view that the only tension in relation to the importation
of PAJA was
the difference in time-scales in relation to reviews under s 145 of
the LRA and PAJA. This difference is but one symptom
of a lack of
cohesion between provisions of the LRA and PAJA.
[96]
Section 157(1) of the LRA provides that, subject to the Constitution
and except where the LRA
provides otherwise, the Labour Court has
exclusive jurisdiction.  Section 157(2) provides that the Labour
Court has concurrent
jurisdiction with the High Court in respect of
any alleged or threatened infringement of any right in the
Constitution and arising,
inter alia, from employment and labour
relations.  High courts will of course always have jurisdiction
where a fundamental
right is pertinently implicated in the labour
relations field, as, for example, when a union might seek to
interdict an employment
practice that is obviously racist.  This,
of course, does not mean that in the ordinary course of reviewing
decisions of CCMA
commissioners concerning unfair labour practices,
the Labour Court does not enjoy exclusive jurisdiction.
[97]
If PAJA were to apply, s 6 thereof would not allow for such
exclusivity and would enable the
High Court to review CCMA
arbitrations.  This would mean that the High Court would have
concurrent jurisdiction with the Labour
Court.  This negates the
intended exclusive jurisdiction of the Labour Court and provides a
platform for forum shopping.
[98]
The powers of the Labour Court set out in s 158 of the LRA differ
significantly from the powers
of a court set out in s 8 of PAJA.  The
powers of the Labour Court are directed at remedying a wrong and, in
the spirit of
the LRA, at providing finality speedily.  If an
application in the normal course for the review of administrative
action succeeds,
an applicant is usually entitled to no more than the
setting aside of the impugned decision and its remittal to the
decision-maker
to apply his or her mind afresh.  Section
8(1)(c)(ii) of PAJA provides that only in exceptional cases may a
court substitute
the administrative decision or correct a defect
resulting from the administrative action.  This is a significant
difference
between the LRA and PAJA.
[99]
All of this explains why s 210 of the LRA was enacted and why it was
not amended or repealed
by PAJA.  Section 210 of the LRA
provides as follows:
‘If any
conflict, relating to the matters dealt with in
this Act
,
arises between
this Act
and the provisions of any other law
save the Constitution or any Act expressly amending
this Act
,
the provisions of
this Act
will prevail.’
[100]
The State in both its executive and legislative arms was involved in
finalising the LRA together
with persons representing business,
labour and community interests. Section 210 is unsurprising.  The
main protagonists in
industrial relations, having negotiated the
terms of the legislation, were not likely to countenance any
non-agreed intrusions.
This is particularly so in relation to
the method and manner of determining disputes.
[101]
For more than a century courts have applied the principle that
general legislation, unless specifically
indicated does not derogate
from special legislation.
Lord Hobhouse,
delivering the judgment of the Privy Council in
Barker v Edger and
Others
, stated the following:
‘When the
Legislature has given its attention to a separate subject, and made
provision for it, the presumption is that a
subsequent general
enactment is not intended to interfere with the special provision
unless it manifests that intention very clearly.
Each enactment
must be construed in that respect according to its own subject-matter
and its own terms. . . .  It would
require a very clear
expression of the mind of the Legislature before we should impute to
it the intention of destroying the foundation
of the work which it
had initiated some four years before, and to which the Court has ever
since been assiduously addressing itself.’
[102]
In
R v Gwantshu
, after citing
Barker
with approval, the
court quoted the following passage from
Maxwell on the
Interpretation of
Statutes
:
‘Where general
words in a later Act are capable of reasonable and sensible
application without extending to subjects
specially
dealt with
by earlier legislation, that earlier and
special legislation
is
not to be held indirectly . . . altered . . . merely by force of such
general words, without any indication or particular intention
to do
so.’
[103]
The legislature had knowledge of s 210 of the LRA and deliberately
decided not to repeal that
section or s 145 of the LRA.  Moreover,
it resulted from intense negotiations that led to the enactment of
the LRA.  This
is an appropriate case for the application
of
the principle that specialised provisions trump general provisions
.
[104]
For the reasons set out above the Supreme Court of Appeal erred in
holding that PAJA applied
to arbitration awards in terms of the
LRA.”
[83]
[127]
It seems to me that, in relation to whether the
Prescription Act applies to unfair dismissal claims under the
LRA, we must
adopt the same approach that this Court adopted when it
had to decide whether PAJA would apply to the review of CCMA
arbitration
awards.  That approach was to say that the LRA is
specialised national legislation enacted to give effect to the right
to
fair labour practices whose dispute resolution framework was
purposefully designed and it contains specialised provisions whereas

the Prescription Act contains general provisions.  As this Court
did in
Sidumo
in relation to PAJA, we must then invoke the
principle “that specialised provisions trump general
provisions”.
[84]
If we invoke this principle, the result will be that the provisions
of the LRA that say that a dismissal dispute may be referred
to
conciliation or adjudication outside the stipulated timeframe if the
employee shows good cause will prevail even beyond three
years from
the date of dismissal and the provisions of the Prescription Act
relating to the three year prescription period
will have no
application to unfair dismissal claims under the LRA.
Non-agreed intrusion
[128]
Furthermore, in
Sidumo
this Court referred to bringing
into the LRA “non agreed intrusions”.  It put
it in these terms:
“[100] The
State in both its executive and legislative arms was involved in
finalising the LRA together with persons representing
business,
labour and community interests.  Section 210 is unsurprising.
The main protagonists in industrial relations,
having
negotiated the terms of the legislation, were not likely to
countenance any non-agreed intrusions.  This is particularly
so
in relation to the method and manner of determining disputes.”
[85]
What this Court meant here was that, if
it held that CCMA arbitration awards could be reviewed under PAJA,
that would bring into
the LRA dispensation a non-agreed intrusion
whereas, if it said that such awards had to be reviewed under section
145 of the LRA,
that would be in line with the “deal”
reached among the stakeholders.
[129]
The context in which this Court said this in relation to PAJA
applies to the present case in relation to the question whether the

Prescription Act applies to unfair dismissal claims under the LRA.
In the present case it seems to me that bringing the three
year
prescription rule into the dispute resolution system under the LRA
concerning unfair dismissal claims when the LRA has got
its own
provisions on when an employee forfeits his or her unfair dismissal
claim is to bring into the LRA a “non agreed intrusion”.

It should be rejected here as this Court rejected such a non agreed
intrusion in
Sidumo
in regard to PAJA.
[130]
The LRA tells us when a person acquires the right not to be
unfairly dismissed.  It says that happens when you are an
employee.
[86]
The LRA also tells us how or when that right gets infringed.  It
says that that happens when an employer dismisses an
employee without
following a fair procedure and/or when there is no fair reason to
dismiss.  It also tells us that that right
is infringed if the
reason for the dismissal is listed in section 187 of the LRA.
That is a provision for automatically unfair
dismissals.  The
LRA also tells us what processes are to be employed by an employee
who seeks a remedy for an alleged infringement
of that right.
Those processes are conciliation and, thereafter, either arbitration
or adjudication, depending on the alleged
reasons for the
dismissal.
[87]
[131]
The LRA also tells us what remedies are available for the
vindication of the right not to be unfairly dismissed or for the
enforcement
of that right.  Those remedies are reinstatement,
re-employment and compensation.
[88]
It also tells us which fora an employee must go to in order to obtain
a remedy for the infringement of that right.
It says that these
are the CCMA, bargaining councils, Labour Court and even a
private arbitration forum where this is agreed
to between the
parties.  Most importantly for present purposes, the LRA tells
us when an employee forfeits his or her unfair
dismissal claims.
It says an employee forfeits an unfair dismissal claim if he or she
fails to refer the unfair dismissal
dispute or claim to the relevant
forum within the stipulated period and has no good cause for that
failure.
[132]
The LRA obliges an employee to refer an unfair dismissal claim
to the relevant forum within a period stipulated in the LRA and
provides
what the consequences are of a failure to refer that dispute
within such stipulated period.  Unlike the Prescription Act,

the LRA’s approach is that failure to refer a dismissal dispute
to the relevant forum within the period stipulated in the
LRA does
not
ipso facto
result in the forfeiture of that claim by the
employee.  The LRA requires more than the failure to refer the
dismissal dispute
within the stipulated period.  It requires
that, in addition, there must be no good cause for the failure to
refer the dispute
within that time.  It was competent for the
Legislature to make the legislative choice that for this special
category of claims
or disputes, how the right not to be unfairly
dismissed is acquired, how it will be infringed, how it will be
enforced and how
it is forfeited would be governed by the LRA, rather
than another piece of legislation such as the Prescription Act.
[89]
[133]
The above is the LRA “package” that has worked
very well without reliance on any rules falling outside of the LRA.

There is no warrant to change it or to in effect amend it by invoking
a rule of the Prescription Act.
[134]
In regard to those debts to which the Prescription Act
applies, the Prescription Act confers benefits on debtors and
creditors.
With regard to creditors, it gives a creditor –
in the case of a debt which would prescribe after the expiry of three
years
since the debt became due – the right to sit back and do
nothing to recover the debt for close to three years.  The
creditor only needs to start acting i.e. instituting action and
serving papers on the debtor, a short while before the expiry of
the
three year period.  Under the LRA an employee who has an
unfair dismissal claim against his or her employer has no
such
benefit in the form of a right to sit back and do nothing for close
to three years.  An employee has a duty under the
LRA to refer
an unfair dismissal dispute to conciliation within 30 days unless he
or she has good cause for any delay.
[135]
The benefits that the Prescription Act gives to debtors
in regard to those debts to which that Act applies is the certainty

that, once the prescription period applicable to a particular debt
has expired, the debt is “dead” and cannot be revived.

In that way he or she no longer owes the creditor.  The LRA
dispensation is different.  It does not give the creditor
i.e.
the employee such a long time to sit back and do nothing about the
unfair dismissal claim or dispute nor does it give the
debtor i.e.
the employer any certainty that the unfair dismissal claim is “dead”
after the expiry of 30 days from the
date of dismissal of the
employee.  The LRA dispensation does not give the employer any
certainty because, even after months
or even more than a year (since
the expiry of the period), the employee may still refer the dismissal
dispute to conciliation if
he or she is able to show good cause.
[136]
The view that the Prescription Act applies to unfair
dismissal claims or disputes imposes on employees a burden or
disadvantage
without giving them any benefit such as that Act gives
to creditors and debtors to whose debts the Prescription Act
applies.
There is no justification for a view with such
implications.  The result of the other construction is,
therefore, to bring
about a system that is more oppressive to workers
than was agreed to by employers and trade unions at NEDLAC.  I
think it
is unwarranted and fails to appreciate the world of equity
and fairness that the LRA strives for in regulating the interests of

employers and employees.
Conclusion
[137]
In the light of the above, it is precisely because the
Prescription Act is not meant to be applied to unfair dismissal
claims
under the LRA that one experiences all sorts of difficulties
when one tries to apply it to unfair dismissal claims.  For
example,
the Prescription Act provides that the mechanism or
instrument to be used to interrupt the running of prescription is the
“service on the debtor of any process” whereby legal
proceedings are commenced (section 15(1) read with the
definition
of “process” in section 15(6)).  If
one reads section 15(1) and (6) together with subsections (2),
(3),
(4) and section 16(1), one sees in those subsections
references to “judgment”, “court” and
“action”
that the proceedings envisaged in section 15(1)
read with subsection (6) are legal proceedings in a court of law
that
may result in the court giving a judgment on the debt.  To
say that the referral of an unfair dismissal dispute to the CCMA
for
conciliation is a process commencing legal proceedings is to do
violence to the
language of the statute.  In the result, I would uphold the appeal.
KOLLAPEN AJ (Cameron J, Froneman J,
Kathree-Setiloane AJ, Madlanga J, Mhlantla J and Theron J
concurring):
Introduction
[138]
Time is central to, and certainly, the essence of this matter,
which involves a consideration of whether time periods that regulate

litigation as provided for in two separate pieces of legislation,
namely the Prescription Act
[90]
and the LRA,
[91]
are consistent with each other.  The legal question that arises
for determination is whether the provisions of the Prescription
Act
apply to litigation involving unfair dismissal claims that are
brought under the LRA.
[139]
I have read the lucid and comprehensive judgments prepared by
my colleagues Zondi AJ (first judgment) and Zondo DCJ (second
judgment).
I concur that leave to appeal must be granted and
that the appeal must succeed.  However, I do not agree that the
provisions
of the Prescription Act are inconsistent with those of the
LRA, and on account of that, the Prescription Act is not applicable
to litigation under the LRA.
[140]
In my view, there is compatibility and consistency between the
two Acts.  Although they both deal with the issue of time, they

focus on different aspects of its application in the litigation
process.  The LRA deals with time periods that do not
necessarily
result in the extinction of a claim in the event of
non-compliance with them, while the Prescription Act deals with time
periods
that will result in the extinction of the claim in the event
of non-compliance.  They are considerably different in the
consequences
they carry and for the reasons that follow; I conclude
that the time periods prescribed in terms of the Prescription Act are
consistent
with both the time periods contained in the LRA and the
general scheme of the LRA.
[141]
The parties to the dispute, the factual background to the
matter, the litigation history and the contentions of the parties in
this
Court are comprehensively set out in the first judgment and
accordingly do not warrant restating.
[142]
The two relevant statutory provisions that require
consideration are section 16(1) of the Prescription Act and
section 210
of the LRA.  Section 16(1) of the Prescription Act
reads:
“Subject to
the provisions of subsection (2)(b), the provisions of this chapter
shall, save in so far as they are inconsistent
with the provisions of
any Act of Parliament which prescribes a specified period
within which a claim is to be made or
an action is to be instituted
in respect of a debt or imposes conditions on the institution of an
action for the recovery of a
debt, apply to any debt arising after
the commencement of this Act.”
Section 210 of the LRA reads:
“If any
conflict, relating to the matters dealt with in this Act, arises
between this Act and the provisions of any other
law save the
Constitution or any Act expressly amending this Act, the provisions
of this Act will prevail.”
The different character of time
periods
[143]
While the rationale for the existence of time periods is
generally to expedite litigation, to limit delays, and to bring a
measure
of certainty to the litigation process,
[92]
depending on their location in the litigation timeline and the
consequence they carry in the event of non-compliance, there are

essentially two distinguishable kinds of time periods.
[93]
While both impose a specific time period within which a step in the
litigation process is to be taken, in the one instance
non-compliance
is capable of being condoned while in the other instance it cannot.
This difference was described in
Myathaza
as being that
between a time bar and a true prescription time period.
[94]
[144]
The starting point in the interpretative exercise that section
16(1) of the Prescription Act contemplates is to properly recognise

that its interpretation must occur against the backdrop of the
Constitution and the values it seeks to advance.  This being
the
case, this Court, in
Mohlomi
, recognised that time periods in
general restrict the right of access to courts.  It has also
expressed itself decisively
to the effect that the timeous resolution
of disputes, which time periods seek to engender, enhances the
quality of adjudication
that must ultimately be the outcome of the
assertion of a right of access to courts.
[95]
[145]
Further, in
Mohlomi
, this Court in dealing with both
the limitation that time periods introduce as well as the utility of
expedition in the resolution
of disputes said:
“Rules that
limit the time during which litigation may be launched are common in
our legal system as well as many others.
Inordinate delays in
litigating damage the interests of justice.  They protract the
disputes over the rights and obligations
sought to be enforced,
prolonging the uncertainty of all concerned about their affairs.  Nor
in the end is it always possible
to adjudicate satisfactorily on
cases that have gone stale.  By then witnesses may no longer be
available to testify.  The
memories of ones whose testimony can
still be obtained may have faded and become unreliable.  Documentary
evidence may have
disappeared.  Such rules prevent
procrastination and those harmful consequences of it.  They thus
serve a purpose to
which no exception in principle can cogently be
taken.
It does not follow,
however, that all limitations which achieve a result so laudable are
constitutionally sound for that reason.
Each must nevertheless
be scrutinised to see whether its own particular range and terms are
compatible with the right which
section 22 [of the interim
Constitution] bestows on everyone to have his or her justiciable
disputes settled by a court of law.
The right is denied
altogether, of course, whenever an action gets barred eventually
because it was not instituted within the time
allowed.  But the
prospect of such an outcome is inherent in every case, no matter how
generous or meagre the allowance may
have been there, and it does not
per se
dispose of the point, as I view that at any rate.  What
counts rather, I believe, is the sufficiency or insufficiency, the
adequacy or inadequacy, of the room which the limitation leaves open
in the beginning for the exercise of the right.  For the

consistency of the limitation with the right depends upon the
availability of an initial opportunity to exercise the right that

amounts, in all the circumstances characterising the class of case in
question, to a real and fair one.  The test, thus formulated,

lends itself to no hard and fast rule which shows us where to draw
the line.  In anybody’s book, I suppose, seven years
would
be a period more than ample during which to set proceedings in
motion, but seven days a preposterously short time.
Both
extremes are obviously hypothetical.  But I postulate them in
order to illustrate that the enquiry turns wholly on estimations
of
degree.”
[96]
[146]
Thus, even though the Court was dealing with the
constitutionality of time limits, what was ultimately to be
determined in the balancing
exercise was whether there was an
adequate and fair opportunity to seek judicial redress.  This
remains an important operating
principle in the interpretation
exercise.  In addition, the prospect of a right becoming
incapable of being asserted was a
risk inherent in every matter.
[147]
The statement in
Mohlomi
was cited with approval in
Barkhuizen
.
[97]
Even though the latter case dealt with time periods in the context of
a private contractual dispute, the Court accepted the
principle that
a limitation within which an action was to be instituted was not in
itself constitutionally offensive.
[98]
A limitation’s ultimate coherence with the scheme of the
Constitution would be determined by whether the time prescribed
could
be regarded as constituting a reasonable and fair opportunity to seek
redress.
[99]
[148]
Finally in
Mdeyide
, this Court emphasised—
“the vital
role time limits play in bringing certainty and stability to social
and legal affairs and maintaining the quality
of adjudication.
Without prescription periods, legal disputes would have the
potential to be drawn out for indefinite periods
of time bringing
about prolonged uncertainty to the parties to the dispute.  The
quality of adjudication by courts is likely
to suffer as time passes,
because evidence may have become lost, witnesses may no longer be
available to testify, or their recollection
of events may have
faded.  The quality of adjudication is central to the rule of
law.  For the law to be respected, decisions
of courts must be
given as soon as possible after the events giving rise to disputes
and must follow from sound reasoning, based
on the best available
evidence.”
[100]
[149]
Thus, while it may be seductively simple to see time periods
as being purely restrictive, viewed in their proper context, they
seek
to enhance the quality of justice and adjudication, which must
be the hallmark of a system of constitutional justice such as ours.

For these reasons, I take the view that time periods are equally
consistent with the imperatives of the Constitution and in particular

section 34.
[101]
[150]
To the extent that the Prescription Act would apply to actions
for the recovery of a debt, a question arises as to whether, given

the admittedly unique and context sensitive nature of the LRA, there
is an in-principle incompatibility in seeking to interpret
the
Prescription Act in a manner that renders it applicable to the LRA
dispute resolution process.  I do not think so.
The
inclusion of labour rights in the Bill of Rights signalled
a significant and seismic development in the recognition
of the
rights of workers.
[102]
However, in much the same way, the Bill of Rights recognises the
existence, on equal footing, of a host of other rights and
it does so
not on the basis that rights are hierarchical but rather on the basis
that they are interdependent, interwoven and mutually

reinforcing.
[103]
[151]
Simply to illustrate the point, a claim for damages against
the state for the violation of the right to physical integrity, which

is guaranteed by section 12 of the Bill of Rights must be prosecuted
within the time periods that the law prescribes.  Notice
of the
intended claim must be given within a specified time and summons must
be issued and served within a specified time.
These time
periods do in fact restrict the time frame within which the right is
to be exercised, but those restrictions enhance
the protection of the
right by ensuring the expeditious prosecution of the claim.
Is the claim a “debt”
under the Prescription Act?
[152]
Section 16(1) of the Prescription Act deals with the
applicability of the Act and prescribes that its provisions apply to
“any
debt arising after the commencement of this Act”.
The preliminary enquiry must accordingly be whether what is being

asserted is a debt.  If not, that would be the end of the
matter, obviating the need for a consistency enquiry.
[153]
While the term “debt” is not defined in the
Prescription Act, our courts, including this Court, have over time
considered
the meaning of the term “debt”.  In
Makate
, the majority judgment considered the meaning of the
term “debt”.  As its point of departure, it took the
view
that, in the context of the Prescription Act, the meaning to be
ascribed to the word “debt” has implications for the

right of access to courts.
[104]
A wide meaning would result in greater inroads into the right of
access to courts as it would broaden the base of the application
of
the extinctive provisions of the Prescription Act.
[105]
It concluded that a narrower meaning would be more in accord with the
dictates of the Constitution in creating the necessary
space for the
assertion of rights and would also be consistent with the provisions
of section 39(2) of the Bill of Rights,
which provides that
when interpreting legislation a court must give effect to the spirit,
purport and objects of the Bill of Rights.
[106]
[154]
The remarks in
Makate
were in large measure prompted by
a finding of the trial court, in that matter, that the claim had
prescribed.
[107]
The trial court relied on the decisions in
Desai
[108]
and
LTA Construction
,
[109]
and suggested that the meaning of “debt” was sufficiently
broad so as to cover an obligation to do something, for example

claims to pay a fair share of revenue and obligations to negotiate
reasonable compensation for the use of an idea.
[110]
[155]
To that extent, this Court cautioned against such a broad
approach and supported the approach taken in
Escom
,
[111]
that the word “debt” should be given the meaning ascribed
to it in the Shorter Oxford Dictionary, namely:
“1.
Something owed or due: something (as money, goods or service) which
one person is
under an obligation to pay or render to another.
2.
A liability or obligation to pay or render something; the condition
of being
so obligated.”
[112]
[156]
If regard is had to this, then it must follow that a claim for
dismissal is, as pointed out in the second judgment in
Myathaza
,
a claim that seeks to enforce three possible kinds of obligations
against an employer: reinstatement, re-employment, and
compensation.
[113]
All three obligations fit neatly within the definition of debt that
Escom
and
Makate
accepted, as they constitute either an
obligation to pay or render something.
[114]
[157]
I accordingly conclude on this aspect that an unfair dismissal
claim activates proceedings for the recovery of a debt as
contemplated
in section 16(1) of the Prescription Act and that the
first leg of the enquiry is answered in the affirmative.  That,
however,
is not the end of the enquiry as what now falls to be
determined is the evaluation of inconsistency which the first
judgment concludes
does indeed exist.
Inconsistency versus difference
[158]
The universal application of the Prescription Act to the
recovery of debts allows for an exception.  Section 16(1) of the
Prescription
Act excludes its application when its provisions are
found to be inconsistent with the provisions of an Act of Parliament

that prescribes a specified time period within which a claim is to be
made or an action to be instituted in respect of a debt or
imposes
conditions on the institution of an action for the recovery of a
debt.
[115]
[159]
To the extent that it is contended that the LRA is an Act that
is contemplated in section 16(1), the time periods provided for

in the LRA within which a matter is to be referred to conciliation
and, if necessary, thereafter to arbitration, may well constitute
the
“specified time period”, referred to in section 16(1), in
respect of which a claim is to be made or an action to
be
instituted.  But the question is whether there is an
inconsistency between these provisions and those of Chapter III of

the Prescription Act.  In the judgment of the Labour Appeal
Court, on which this appeal is based, the Court appeared to adopt
the
approach that the mere existence of provisions in the LRA that relate
to time periods or conditions triggers the risk of inconsistency
but
would not be sufficient to constitute the inconsistency.  What
was required was to establish qualitatively whether there
was an
inconsistency.
[116]
[160]
I think there is merit in this approach.  An
inconsistency does not arise merely from the fact that the
Prescription Act and
the LRA deal with time periods or impose
conditions.  What is required to be demonstrated is that the
provisions of the two
Acts are inconsistent, or more accurately, that
the provisions of the Prescription Act are inconsistent with the
relevant provisions
of the LRA.
[161]
If inconsistency were held to arise from the mere existence of
such provisions, without further enquiry as to their inconsistency

with the Prescription Act, that would not do justice to the language
of section 16(1).  It would render meaningless the inconsistency

requirement that section 16 specifically sets as the jurisdictional
requirement to oust the provisions of Chapter III of the Prescription

Act.  On what basis could it conceivably be argued that, absent
an exercise in evaluating consistency, the mere existence
of
provisions in the LRA that specify time periods or impose conditions
constitute the necessary inconsistency the Prescription
Act requires
before it can be said that its provisions are ousted?  I am not
persuaded that jettisoning the consistency evaluation
can lead to a
conclusion of inconsistency.
[162]
In
Mdeyide
, this Court when called upon to consider
whether an inconsistency existed between the Prescription Act and the
RAF Act remarked
that what was required was a “consistency
evaluation”.
[117]
An evaluation requires a proper consideration of the provisions of
the two Acts, followed by a motivated conclusion as to
whether there
is consistency or not.
[118]
It cannot happen in any fashion other than through a qualitative
process.
[163]
Before considering the relevant provisions of the two Acts in
undertaking the consistency evaluation, it may be necessary to pause

and consider the meaning to be ascribed to the term “inconsistent”.
[164]
The ordinary meaning of the word inconsistent is amongst
others “irreconcilable with”, “out of keeping
with”,
“at variance with”, or “incompatible
with”.
[119]
This meaning accords with the context within which the term is used
in the Prescription Act, which provides for the universal
application
of the Prescription Act in respect of proceedings to recover a debt,
except where there are inconsistencies with another
law that relates
to time periods or conditions.  Clearly, and even in the face of
difference, what is required is more than
difference.  Where
differences do exist and even materially so, they cannot, in
themselves constitute inconsistency unless
by their very nature they
render the two Acts irreconcilable with each other.  I can see
no justification, in particular regard
being had to
Mdeyide
and
the “consistency evaluation” it requires to jettison that
in favour of a lesser requirement of mere difference.
I am not
persuaded that even if one used the prism of section 39(2) of the
Constitution in determining the meaning to be ascribed
to the term
“inconsistent”, that a conclusion so far removed from the
ordinary meaning of the word can be justified.
In any event, as
I have said, the need to – at some point – eventually
sound the death knell in respect of claims is
itself consistent with
meaningful and wholesome access to courts.  Thus my approach is
by no means antithetical to the injunction
in section 39(2) of the
Constitution.
[165]
Indeed, in
Mdeyide
this Court indicated the test for
inconsistency in the following terms:
“[I]n every
case in which a plaintiff relies upon a [certain provision], the
cardinal question is whether that provision is
inconsistent with
[another provision].”
[120]
[166]
Thus, even on an acceptance that in some instances difference
in the various provisions may provide evidence of inconsistency, it

does not alter the fundamental test that the section requires, namely
a finding of inconsistency.  In
Mdeyide
, this Court
concluded that looking for consistency in the two Acts was “a
quest bound to fail”, largely on account
of the conclusion that
in that matter the Prescription Act dealt with prescription of claims
while the RAF Act also dealt with
prescription, albeit on a different
basis.
[121]
Accordingly, the subject matter of the two Acts was identical, namely
prescription periods, and they provided different time
periods when a
claim in respect of each Act would prescribe.  This was
overwhelmingly a case where difference resulted in
clear
inconsistency.
[167]
Equally, if one has regard to the wording of section 210 of
the LRA, which provides that the provisions of the LRA will apply in

the event of conflict between it and the provisions of any other law,
the meaning of the word conflict must also assume the meaning

ordinarily assigned to it and difference in itself will not
constitute conflict unless such difference necessarily leads to
conflict.
The consistency evaluation
[168]
Section 10(1) of the Prescription Act reads:
“Subject to
the provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the lapse
of the period which in
terms of the relevant law applies in respect of the prescription of
such debt.”
[169]
Thus, once a debt becomes due, prescription begins to run and
provided that prescription is not interrupted by the circumstances

set out in sections 13,
[122]
14,
[123]
and 15
[124]
of the Prescription Act, the debt shall, in terms of section 10, be
extinguished after the lapse of time set out.  Once a
debt has
prescribed, there is no basis upon which a creditor can seek to have
non-compliance with the time periods provided for
in the Prescription
Act condoned.
[125]
The debt has been extinguished and no after-life or a
resuscitation of the debt is possible.  Such an outcome is
consistent
with providing the certainty and predictability that
prescription periods are intended to introduce into the law relating
to the
enforcement of debts.
[126]
The circumstances under which prescription begins to run, as
well as those that may interrupt its running are all intended
to
provide a balance between fairness and flexibility, on the one hand,
and certainty and predictability, on the other.
[170]
The provisions of the LRA, which were enacted to give effect
to the right to fair labour practices, also deal with time periods
within which various steps in advancing the dispute resolution
process must take place.
[171]
Section 191(1) of the LRA provides, amongst other things, that
a dispute concerning an unfair dismissal which is referred to the

CCMA must be referred within 30 days after the date of dismissal or
within 30 days after the employer has made a final decision
to
dismiss or uphold the dismissal.
[172]
Section 191(1) also provides for the referral to the CCMA of a
claim relating to an unfair labour practice which referral must be

made within 90 days of the act or omission or 90 days of the date the
employee became aware of it.
[173]
In the same vein, section 191(5) provides for arbitration by
the CCMA or adjudication by the Labour Court after the expiry of 30

days and 90 days respectively, since the CCMA received the referral
and the dispute remains unresolved.
[174]
The general scheme of section 191 is thus, to provide for time
periods within which a matter has to be referred to the CCMA and if

necessary to arbitration as well as to the Labour Court for
adjudication.  Section 191(2) and (11)(b), however, provide that

where there is non-observance with the specified time period, the
CCMA or the Labour Court may condone such non-observance if good

cause is shown.
[127]
[175]
These relatively short time periods, in my view, illustrate
the point made, in
Myathaza
, in the first judgment:
“Employment
disputes by their very nature are urgent matters that require speedy
resolution so that the employer’s business
may continue to
operate and the employees may earn a living.  Undue delays, even
of a period of three years, may have catastrophic
consequences to the
employer’s business and the employee whose only source of
income is remuneration received from the employer.
Such
employees can hardly survive for three years without a salary.”
[128]
[176]
Properly viewed, section 191 does two things.  Firstly,
it provides a specific time frame within which a referral is to be
made and secondly, it provides a mechanism to seek an indulgence upon
good cause being shown where there has been non-observance
of the
specified time period.  What the LRA does not do is set an outer
limit to the litigation process that provides for
the extinction of a
claim.  In this regard, it certainly would follow that a claim
would be extinguished in respect of a litigant,
who has not observed
the time periods in the LRA and is unable to show good cause.
This is, however, different from a prescription
time period.  In
the former case, the extinction of the claim would arise from the
failure to demonstrate good cause while
in the latter, it would arise
as a result of the running of prescription within a particular time
frame.  While the same result
is achieved it is arrived at
through a different route in each case.
[177]
Are the time periods provided for in section 191 of the LRA
inconsistent with the provisions of the Prescription Act?  As I

have demonstrated, while they both deal with time periods, they do so
for different reasons and to achieve different objectives.
The
time periods in the LRA indicate when a litigant is expected to take
the necessary steps in the dispute resolution process
to properly
prosecute a claim, while the Prescription Act provides a cut-off
point when those steps are no longer available to
a litigant on
account of the claim having prescribed.
[178]
Simply on that analysis, it can hardly be said that there is
inconsistency between the provisions of the LRA and the Prescription

Act, in so far as they relate to time periods.  Of course, if
the LRA provided for a prescription period, as did the RAF Act
in
Mdeyide
, that would have been a different matter, but that is
not the case here.
[179]
The time periods in the LRA and in the Prescription Act
regulate different features of the litigation process and are not
only reconcilable
but can exist in harmony alongside each other.
[180]
The application of the Prescription Act to the LRA would
advance the speedy resolution of employment disputes by firstly,
leaving
wholly intact the mandated time periods for referrals that
section 191 provides for.  The application of the
Prescription Act
cannot have as an unintended consequence the
implied extension of those time periods to coincide with the period
of prescription.
Secondly, subjecting claims under the LRA to
an outer time limit would considerably enhance the efficiency of the
dispute resolution
process.  Placing an outer limit beyond which
the litigation process simply cannot continue prevents employment
disputes from
being litigated after a considerable passage of time.
This may impact negatively on both the quality of adjudication as
well
as the important policy considerations that relate to the quick
and speedy resolution of employment related disputes, the ability
of
workers to continue to earn a living, as well as the ongoing ability
of businesses to continue operating.
[181]
For these reasons, I must also conclude, regard being had to
section 210 of the LRA, that the provisions of the LRA are not in
conflict
with the provisions of the Prescription Act.  It must
follow that if there is no inconsistency then,
a fortiori
(with stronger reason), there can be no conflict.  The
definition of conflict is a considerably higher bar to meet than
the
consistency evaluation which I have undertaken.  I also conclude
that the existence of conflict between the two statutes
has not been
established.
The good cause “at any time”
argument
[182]
Section 191(2) of the LRA, in dealing with the respective time
periods of 30 and 90 days within which a referral to conciliation

must be made, provides that if an employee shows good cause at any
time, the referral may be made outside of the time provided
for.
Arising out of this is the proposition that the words “at any
time” militate against the provisions of the
Prescription Act
in that they create a litigation time frame that is either
inconsistent with or in conflict with the Prescription
Act.  I
do not think this is the case, regard being had to the character of
section 191 as well as the meaning that has come
to be ascribed to
the words “at any time” as they appear in section 191(2).
[183]
Section 191(2) provides that “[i]f the employee shows
good cause at any time, the council or [CCMA] may permit the employee

to refer the dispute after the relevant time limit . . . has
expired”.  Section 191(2) stands to be interpreted with

regard to the section as a whole as well as the broad scheme of the
LRA.  It cannot, accordingly, be interpreted in isolation
or,
for that matter, disjunctively.  Section 191(2) does not relieve
an employee of the obligation to refer the dispute within
the time
period stipulated in section 191(1)(b) nor does it purport to create
a separate and different time regime from the one
prescribed in that
section.  What it does is regulate the procedure to be followed
by an employee in asserting a right created
by the LRA.
[184]
In this sense, section 191(2) is procedural as opposed to
substantive in nature.  The difference between procedural and
substantive
prescription periods was described in
Society of
Lloyd’s
, where the Supreme Court of Appeal distinguished
between statutes that extinguish a right and those that bar a remedy
by imposing
a procedural bar on the institution of an action.
[129]
In this regard, section 191 deals with what may be described as
matters of a procedural nature while the Prescription Act
deals with
what is described as substantive in nature.  This distinction is
important in that it contemplates a substantive
issue such as
prescription and a procedural matter such as a time bar running along
parallel tracks and having different objectives.
The former
regulates and imposes a cut-off period in respect of litigation while
the latter seeks to regulate, through the imposition
of time bars,
the procedure to be followed in asserting a right.  They are
separate and distinctive processes and indeed can
operate in harmony
with each other when one is interlaid with the other.  On this
basis alone, my view would be that whatever
meaning was ascribed to
the words “at any time” would hardly matter, given the
very different nature of prescription
periods and time bars and what
they seek to achieve.
[185]
However, and to the extent that it is necessary, what does the
phrase “at any time” mean and what does it refer to?

Is it to be given its literal meaning, and if so, what does this mean
in relation to the time-centred approach which is at the
heart of the
LRA, or does it derive its meaning from the context of the LRA as a
whole?
[186]
In
Endumeni Municipality
, the Supreme Court of Appeal,
in setting out the approach to interpretation, referred to the need
to have regard to both the language
used as well as the context
within which the words are used:
“Over the
last century there have been significant developments in the law
relating to the interpretation of documents, both
in this country and
in others that follow similar rules to our own.  It is
unnecessary to add unduly to the burden of annotations
by trawling
through the case law on the construction of documents in order to
trace those developments.  The relevant authorities
are
collected and summarised in
Bastian
Financial Services
(Pty) Ltd v General Hendrik Schoeman Primary School
.  The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words
used in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into
existence.  Whatever the nature of the document, consideration
must be given to the language used in the light of the
ordinary rules
of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed
and the material known
to those responsible for its production.  Where more than one
meaning is possible each possibility
must be weighed in the light of
all these factors.  The process is objective, not subjective.
A sensible meaning is
to be preferred to one that leads to insensible
or unbusinesslike results or undermines the apparent purpose of the
document.
Judges must be alert to, and guard against, the
temptation to substitute what they regard as reasonable, sensible or
businesslike
for the words actually used.  To do so in regard to
a statute or statutory instrument is to cross the divide between
interpretation
and legislation; in a contractual context it is to
make a contract for the parties other than the one they in fact
made.
The ‘inevitable point of departure is the language
of the provision itself’, read in context and having regard to
the
purpose of the provision and the background to the preparation
and production of the document.”
[130]
(Footnotes omitted.)
The Supreme Court of Appeal approved the
statements in
K & S
which held that an exercise of legal
interpretation should ensure that words or phrases are not given
meanings that isolate or
divorce the words or phrases from their
context.
[131]
The Court in
K & S
held that context must be considered in
the early stages of any interpretation exercise and not at a later
stage where ambiguity
may arise.
[132]
There is much to be said for this approach, as words or phrases
insulated from their context may well take on a meaning and
have an
effect that is wholly inconsistent with the context in which they are
used.
[187]
Adopting the approach that the phrase “at any time”
must be given its literal meaning runs counter to the stated
objectives
of the LRA and the expeditious resolution of disputes that
it seeks to advance.
[133]
It would suggest that, notwithstanding the time frames of 30 and 90
days, respectively, within which it is mandatory to refer
a dispute
to conciliation, it nevertheless remains open to a party to make such
a referral at any time, provided that it is accompanied
by an
application for condonation.  In my view, such a stance would be
wholly inconsistent with the scheme of the LRA and
would undermine
the very objectives of the LRA which set relatively tight timeframes
for the commencement of proceedings.
Our courts have, on
occasion, pronounced on the importance of labour disputes to be
conducted with expedition.  For example,
in
National Research
Foundation
the Labour Court held:
“It is now
trite that there exists a particular requirement of expedition where
it comes to the prosecution of employment
law disputes.
Skweyiya J in
Khumalo
and Another v Member of the Executive
Council for Education: KwaZulu-Natal
said: ‘the importance
of resolving labour disputes in good time is thus central to the LRA
framework’.  Similarly,
and in
Aviation Union of SA
and Another v
SA Airways (Pty) Ltd and Others
,
Jafta J held: ‘Speedy resolution is a distinctive feature of
adjudication in labour relations disputes’.
In
National
Education Health and Allied Workers Union v University of Cape Town
and Others
Ngcobo J said:
‘By their very
nature labour disputes must be resolved expeditiously and be brought
to finality so that the parties can organise
their affairs
accordingly.  They affect our economy and labour peace.  It
is in the public interest that labour disputes
be resolved speedily.’
The message
conveyed, respectfully, is clear.”
[134]
(Footnotes omitted.)
[188]
Therefore, it would hardly make sense to prescribe an approach
that makes time of the essence by prescribing relatively short time

periods within which to effect a referral, while having an indefinite
and open-ended time frame within which the dispute may be
referred
upon the demonstration of good cause.  The Labour Court in
Makuse
adopted the position that—
“condonation
for delays in all labour law litigation is not simply there for the
taking. . . the courts have made it clear
that applications for
condonation will be subject to ‘strict scrutiny’,
and that the principles of condonation
should be applied on a
‘much stricter’ basis.”
[135]
This approach illustrates that, in all
applications where a litigant applies for condonation, the court will
apply its mind strictly
in deciding whether condonation should be
granted.  Thus the open-ended approach which advances the notion
that a referral
to conciliation can be sought at any time is clearly
at odds with the approach that the Labour Court takes in
Makuse
.
[189]
Whilst accepting that prescription serves the important
purpose of ensuring finality, certainty and the quality of
adjudication,
it nevertheless advocates – subject to the
showing of good cause – for a totally unbounded period within
which claims
may be lodged.  I find an internal contradiction in
this.
[136]
The first judgment’s approach lies in the fact that, whilst
that approach correctly emphasises the need for the expeditious

resolution of labour matters, it – at the same time –
says the time within which these matters must be litigated is

limitless, subject of course to the showing of good cause.
[137]
The need to ensure finality, certainty and quality adjudication and
to resolve labour matters expeditiously point to the
need to read the
provisions of the Prescription Act and LRA harmoniously.
[190]
The Labour Court had the opportunity to consider the meaning
of the phrase “at any time” used in section 191(2) in
Balaram
[138]
and
Gianfranco.
[139]
While both matters dealt with the tangential question of when a
good cause application had to be made following a late referral,
they
both offered some insight into the interpretation of the words “at
any time”.  They both took the position
that the meaning
of the phrase had to be considered in context.  In
Balaram
,
the Labour Court took the view that condonation could be sought at
any time prior to a binding arbitration award being made
[140]
while in
Gianfranco
the Labour Court took the position that
condonation must be sought at the conciliation stage and the phrase
“at any time”
was qualified to mean at any time during
the conciliation phase.  The Labour Court in the latter case
held:
“Seen in this
context, the words ‘at any time’ in subsection (2) must
be qualified to mean at any time during
the conciliation process.
As a general principle, an application for condonation must be made
as soon as the employee becomes
aware that condonation must be
sought.  This would usually be before the hearing of the
conciliation proceedings.  In
my view, the use of the words ‘at
any time’ was intended to cater for,
inter alia
, the
contingency that the need for condonation is brought to the notice of
the employee only at the conciliation.  In such
a case, he could
there and then apply for condonation.  A formal, written
application would not be a prerequisite for the
granting of
condonation.
However, this is a
far cry from the contention of the respondent that ‘at any
time’ means even after the conciliation
phase has been
completed and the dispute has entered the arbitration or adjudication
stage.  To adopt this interpretation
requires that one accepts
that there can be a valid arbitration or adjudication even though
there has not been a valid conciliation.
In my view, such a
view is untenable.  To borrow from terminology which appears to
be outdated, but still appears useful:
a jurisdictional fact for a
valid arbitration or adjudication is a certificate issued after a
valid conciliation which has failed
to resolve the dispute.”
[141]
[191]
These judgments demonstrate the importance of context in the
exercise of interpreting legislation, that the phrase “at any

time” cannot simply be given its literal meaning and that the
phrase dealt with what was in essence a procedural matter.
In
Gianfranco
, it was also held that the phrase “at any
time” had to be seen in context and was susceptible to
qualification.
[142]
[192]
In addition, when one has due regard to the structure and
language of section 191(2), it is evident that the phrase “at

any time” is used in the context of good cause rather than in
the context of when a dispute that is brought out of time may
be
referred.  Clearly, if it was intended to permit a late referral
at any time, then the words “at any time”
would have been
inserted after the word “dispute” in the section to give
effect to that intention.  Therefore,
the interpretation that
the phrase “at any time” if used in the context of good
cause, is supported by section 191(11)(b),
which empowers the
Labour Court to grant condonation for a late referral upon good cause
shown.
[143]
The language used in this section does not include the phrase “at
any time”, which in my view, provides support
for the
interpretation that the words “at any time” refer to no
more than the timing of the good cause application
within the dispute
resolution process.
[193]
Arising out of this, I would conclude for all the reasons
advanced that the words “at any time” do not have the
effect
of extending the mandatory time frames of 30 and 90 days set
out in section 191(2) of the LRA and accordingly do not provide the

basis for an inconsistency argument in relation to the Prescription
Act.
Was the running of prescription
interrupted by the referral of the matter to conciliation?
[194]
Section 15(1) of the Prescription Act provides for the
interruption of the running of prescription “by the service on
the
debtor of any process whereby the creditor claims payment of the
debt”.  The heading to the section is “[j]udicial

interruption of prescription”.  The crisp question that
follows from this is, whether the commencement of proceedings
before
the CCMA constitutes the service of a process the section
contemplates.  An associated question is whether, if the

referral constitutes such a process, it subsumes features of a
judicial process.
[195]
Section 15(6) of the Prescription Act defines process to
include “a petition, a notice of motion, a rule
nisi
, a
pleading in reconvention, a third party notice referred to in any
rule of court and any document whereby legal proceedings are

commenced”.  While most of the documents to which
reference is made ordinarily constitute documents associated with
the
courts and the litigation advanced there,
[144]
the reference to “any document whereby legal proceedings are
commenced” is clearly indicative of a broader and more
generous
approach to what may constitute such a document.  The second
judgment in
Myathaza
, referred to a Zimbabwean case which
dealt with a similar provision to section 15(6) and defined the
precise meaning of “process”.
[145]
The Zimbabwe Supreme Court per Georges CJ held:
“The
definition of ‘process’ in subsection (6) is not
exclusive in its scope.  The section merely enumerates
some
documents which fall within the ambit of the word.  It clearly
contemplates that other documents may fall within that
ambit.”
[146]
All that section 15(6) requires is that
the document in question is one by which legal proceedings are
commenced.
[196]
The interpretation I have attached to the term “any
document” is not offensive to the section, nor is it overly
broad
and inconsistent with the context within which it is used.
In addition, and to the extent that it may be necessary, interpreting

the term “any document” in a narrow sense, as being
confined to documents used in formal court processes, would not

accord with what is required if the interpretation exercise, as it
must, is viewed through the prism of section 39(2).
[147]
The interruption of prescription, in effect, releases the constraint
that the running of prescription has on the right of
access to
courts, which is provided for in section 34 of the
Constitution.
[148]
It accordingly justifies a broader meaning to be attached to the term
“any document”, for the same reasons advanced
above in
support of a narrower meaning to be ascribed to the term “debt”.
[197]
If ultimately the re-interpretation of the Prescription Act
must demonstrate a fidelity to the values of the Constitution, then
there can be no justification in seeking to assign a narrow meaning
to the term “any document”, which in any event is

qualified by the reference to it being “any document”
commencing legal proceedings.
[149]
In
Wessels,
the High Court held
that the meaning ascribed to “any”, as contemplated in
section 15(6), did not even require a reading
in of the term, because
the subsection was already “wide” and clearly “inclusive
of a wide range of documents”.
[150]
[198]
Is a referral to the CCMA a document commencing legal
proceedings constituting judicial interruption of prescription?
In both
the first and second judgments in
Myathaza
, it was
accepted that the CCMA is an independent and impartial forum of the
kind contemplated in section 34 of the Constitution,
where a dispute
could be resolved by the application of law.
[151]
Clearly the adjudicative processes of the CCMA function like courts
of law in resolving labour disputes as was observed in
the first and
second judgments in
Myathaza
.
[199]
If arbitration constitutes adjudicative proceedings, what then
of the conciliation process?  The scheme of the LRA makes a
referral to conciliation a mandatory first step in the process that
may ultimately lead to adjudication.
[152]
While conciliation may not be adjudicative in nature, it is a
necessary and mandatory part of the dispute resolution process
that
the LRA creates and it occurs within the operations of the CCMA,
which is an independent and impartial forum.
[153]
It is not possible to activate the adjudicative features of the CCMA
without first resorting to conciliation.
[154]
It is also so inextricably linked to the arbitration process that the
LRA envisages, as part of a continuum as well as in
terms of the
connectivity in the subject matter of the two processes.  I
believe it does an injustice to the architecture
of the LRA and the
CCMA to see and characterise conciliation as anything other than the
commencement of legal proceedings in an
independent and impartial
forum.  For those reasons, I would conclude on this aspect that
the referral of disputes to the
CCMA for conciliation constitutes the
service of a process commencing legal proceedings.  I will
elaborate further on this
point below.
[200]
While conciliation is a process facilitated by a Commissioner
of the CCMA to enable parties to a dispute to seek a mutually
acceptable
solution,
[155]
it is also not a wholly informal process.  The LRA contemplates
a possible resolution of the dispute at that stage.
In
addition, our courts have meticulously outlined the role expected of
a Commissioner in such a setting.  The Commissioner
must have
regard to the nature of the dispute and correctly identify it, if
need be, to ensure that the certificate of outcome
correctly reflects
the nature of the dispute.
[156]
The reason for this is that, if and when a matter is referred to
arbitration, then the process of conciliation becomes important
as
far as the evidence in the referral form and certificate of outcome
become relevant.
[201]
In addition, Rule 5A of the Rules of the CCMA also recognises
a conciliation hearing as part of the category of proceedings before

the CCMA.
[157]
While Rule 16, in turn, protects the content of conciliation
proceedings from disclosure, it gives a court the power to lift
such
protection.
[158]
The point is simply, that even absent an adjudicative component,
conciliation proceedings carry with them many features of
a judicial
process.  A referral to conciliation activates the jurisdiction
of the CCMA, the CCMA is obliged to appoint a Commissioner
to
conciliate the dispute,
[159]
the role of the Commissioner in such conciliation proceedings has
been carefully delineated by our courts, the proceedings may
involve
a determination of the facts
[160]
– all of these strongly point to the direction that those
proceedings are indeed the commencement of proceedings for the

enforcement of a debt.
[202]
In addition, given the mandatory nature of conciliation as a
requirement for arbitration or a referral to the Labour Court,
[161]
it follows, in my view that the proceedings for the recovery of the
debt, that arise from an unfair dismissal, commence when a
dispute is
referred to conciliation.  To hold otherwise would simply mean
airbrushing the important and legally mandated process
of
conciliation, from what can only be seen as a continuum in the legal
process from conciliation to adjudication that the LRA
evidences.
In
Cape Town Municipality
, the Court held that a process that
initiates proceedings for enforcement of payment of a debt interrupts
prescription:
“It is
sufficient for the purposes of interrupting prescription if the
process to be served is one whereby the proceedings
begun there under
are instituted as a step in the enforcement of a claim for payment of
the debt.
A creditor
prosecutes his claim under that process to final, executable
judgment, not only when the process and the judgment constitute
the
beginning and end of the same action, but also where the process
initiates an action, judgment in which finally disposes of
some
elements of the claim, and where the remaining elements are disposed
of in a supplementary action instituted pursuant to and
dependent
upon that judgment.”
[162]
[203]
What is instructive from this decision is that it recognises
that the judicial process may consist of various steps that are
intertwined
and that it is not necessary that the process that
commences proceedings must result in a judgment in the same action.
Thus,
it matters not that the process that constitutes a referral to
conciliation does not result in a judgment.  It may still, and

does indeed, constitute the commencement of proceedings for the
enforcement of a debt.
[204]
For these reasons, I would conclude that, although
prescription began to run when the debt became due on 1 August 2001,
it was interrupted
by the referral of the dispute to the CCMA on 7
August 2001 and continued to be interrupted until the dismissal of
the review proceedings
by the Labour Court on 9 December 2003.
Accordingly, when the dispute was referred to the Labour Court for
adjudication
on 16 March 2005, it clearly had not prescribed.
It is for these reasons that the appeal must succeed.
Fairness and flexibility
[205]
While it is not clear whether considerations of fairness and
flexibility are part of the consistency evaluation, the better view

is that they are not.  I, nevertheless, deem it important to
deal with them, insofar as it may be suggested that the application

of the Prescription Act will result in inflexibility and unfairness
in the manner in which labour rights are given effect in terms
of the
LRA.
[206]
While prescription has been broadly identified as limiting the
right of access to courts,
[163]
the operation of the provisions of the Prescription Act and in
particular section 12 were described as striking the necessary

balance between certainty and fairness by introducing the necessary
flexibility in determining when a debt becomes due and, by

implication, when such a debt prescribes.  In
Links
, this
balance was described in the following terms:
“The
provisions of section 12 seek to strike a fair balance between, on
the one hand, the need for a cut-off point beyond
which a person who
has a claim to pursue against another may not do so after the lapse
of a certain period of time if he or she
has failed to act diligently
and on the other the need to ensure fairness in those cases in which
a rigid application of prescription
legislation would result in
injustice.  As already stated, in interpreting section 12(3) the
injunction in section 39(2) of
the Constitution must be borne in
mind.  In this matter the focus is on the right entrenched in
section 34 of the Constitution.”
[164]
[207]
In the same judgment, this Court examined, in considerable
detail, the circumstances under which a debt becomes due and when
prescription
begins to run:
“In
Gore
the Supreme Court of Appeal said through Cameron and Brand JJA:
‘This court
has in a series of decisions emphasised that time begins to run
against the creditor when it has the minimum facts
that are necessary
to institute action.’
Later in the same
case the [C]ourt said:
‘The
defendants’ argument seems to us to mistake the nature of
‘knowledge’ that is required to trigger the
running of
prescriptive time.  Mere opinion or supposition is not enough:
there must be justified, true belief.  Belief
on its own is
insufficient.  Belief that happens to be true . . . is also
insufficient.  For there to be knowledge, the
belief must be
justified.’
The [C]ourt also
said:
‘It follows
that belief that is without apparent warrant is not knowledge; nor is
assertion and unjustified suspicion, however
passionately harboured;
still less is vehemently controverted allegation or subjective
conviction.’”
[165]
[208]
The unavoidable conclusion to be drawn from the above is that
the manner in which our courts have interpreted the Prescription Act

does indeed demonstrate a significant measure of flexibility, in
striking the necessary balance between fairness and certainty.

The application of the Prescription Act will accordingly import the
same balance into the LRA processes, in the context of dealing
with
prescription.  The concern that the LRA represents a fair and
flexible model of dispute resolution, in contrast to the
rigid and
presumably unfair system of the Prescription Act, is accordingly not
warranted.
[209]
In the same breath, the manner in which the running of
prescription is interrupted also allows and provides for that same
flexibility.
While the Supreme Court of Appeal
in
Ngqula
[166]
left open the question of whether prescription is interrupted by
proceedings in the wrong forum, the Free State High Court answered

that question in the affirmative in
Kruger
, where the Court
held:
“It is my
view that the institution of proceedings in a court with or without
jurisdiction
does interrupt prescription
.”
[167]
[210]
Thus, while prescription has been described as a ticking clock
running against a litigant, its operation is far from mechanical and

context insensitive.  The approach taken in interpreting section
12, as requiring a creditor to have full knowledge of all
the
material facts that would support a claim before it can be said that
a debt is due,
[168]
provides considerable flexibility and protection to a creditor, just
as the provisions that relate to the interruption of prescription
do.
[211]
It would accordingly be inaccurate to label the LRA system of
dispute resolution as being flexible and fair and the provisions of

the Prescription Act as introducing a measure of inflexibility in an
otherwise flexible system.  I believe I have sufficiently

demonstrated that such is not the case.
[212]
In addition, it must be recalled that the flexibility in the
LRA is not of the open ended kind.  Failure by a party to

comply with time frames requires an application for condonation where
good cause must be shown.  Condonation, however, is
not for the
asking and, in each case, a litigant who is out of time and who seeks
condonation must demonstrate facts and circumstances
that justify
such relief.  In
Ngcobo
, the Supreme Court of Appeal
held that when determining good cause, courts will take into account
a number of “interrelated
factors which include the explanation
for the failure to comply with the time limit and the applicant’s
prospects of success
in the claim before the Labour Court”.
[169]
In
SA Truck Bodies
, the Labour Court held that the
notions of good cause and sufficient cause are used
interchangeably.
[170]
The Court relied on the
locus
classicus
(best known)
decision of
Melane,
which reiterated the position that the
determination of good cause is reliant on various interrelated
factors:
“In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised
judicially upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides.  Among the facts
usually relevant are
the degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case.
Ordinarily these facts
are interrelated: they are not individually decisive, for that would
be a piecemeal approach incompatible
with a true discretion, save of
course that if there are no prospects of success there would be no
point in granting condonation.”
[171]
[213]
The principle of fairness to both sides encapsulated in the
“good cause” exercise is similar to the approach taken in

the interpretation of the Prescription Act, to which I have already
made reference by relying on
Links
and I would say no more
than that the consciousness that is brought to bear on these two
different but reconcilable pieces of legislation
evidences the same
golden thread – fairness to both sides and certainty in the
process.
Conclusion
[214]
The LRA and the Prescription Act both seek to achieve
objectives that are compatible with each other – the efficient
and timely
resolution of disputes within a specified time frame.
They are not at opposite ends of the litigation spectrum nor do they

seek to advance different and inconsistent litigation imperatives.
They can and do co-exist alongside each other in an integrated

fashion.  I would, accordingly, uphold the appeal.
[215]
For these reasons, I concur in the order in the first
judgment.
For the Applicants:
J
G Van Der Riet SC instructed by Cheadle Thompson & Haysom
For the Respondents:
S Snyman instructed
by Snyman Attorneys
[1]
66 of 1995.
[2]
68 of 1969.
[3]
Section 191(5)(b) of the LRA reads:
“[T]he
employee may refer the dispute to the Labour Court for adjudication
if the employee has alleged that the reason for
dismissal is—
(i)
automatically unfair;
(ii)
based on the employer’s operational requirements;
(iii)
the employee’s participation in a strike that does not comply

with the provisions of Chapter IV; or
(iv)
because the employee refused to join, was refused membership of or

was expelled from a trade union party to a closed shop agreement.”
[4]
This section provides that “[a]n application to set aside an
arbitration award in terms of this section interrupts the
running of
prescription in terms of the Prescription Act … in respect of
that award.”
[5]
For the date on which this amendment took effect see the Government
Gazette No. 38317, dated 19 December 2014.
[6]
FAWU obo Gaoshubelwe v Pieman’s Pantry (Pty) Ltd
[2014]
ZALCJHB 319 (LC).
[7]
Section 191(11) provides:
“(a)
The referral, in terms of subsection (5)(b), of a dispute to the
Labour
Court for adjudication, must be made within 90 days after the
council or (as the case may be) the commissioner has certified that

the dispute remains unresolved.
(b)
However, the Labour Court may condone non-observance of that
time-frame
on good cause shown.”
[8]
Section 16(1) of the Prescription Act reads:
“Subject to
the provisions of subsection (2)(b), the provisions of [Chapter III]
shall, save in so far as they are inconsistent
with the provisions
of any Act of Parliament which prescribes a specified period within
which a claim is to be made or an action
is to be instituted in
respect of a debt or imposes conditions on the institution of an
action for the recovery of a debt, apply
to any debt arising after
the commencement of this Act.”
[9]
Food & Allied Workers Union on behalf of Gaoshubelwe v
Pieman’s Pantry (Pty) Ltd
[2016] ZALAC 46
; (2017) 38 ILJ
132 (LAC) (LAC judgment).
[10]
Myathaza v Johannesburg Metropolitan Bus Service (SOC) Ltd t/a
Metrobus; Mazibuko v Concor Plant Cellucity (Pty) Ltd v
Communication
Workers Union on behalf of Peters
[2015] ZALAC 45
;
(2016) 37 ILJ 413 (
Myathaza LAC
).
[11]
Id at paras 16-9 and 21.
[12]
Id at para 43.
[13]
56 of 1996.
[14]
LAC judgment above n 9 at para 55.
[15]
Rural Maintenance (Pty) Limited v Maluti-A-Phofung Local
Municipality
[2016] ZACC 37
; (2017) 38 ILJ 295 (CC);
2017 (1)
BCLR 64
(CC) (
Rural Maintenance
) at para 17.
[16]
Myathaza LAC
above n 10 at para 17.
[17]
Makate v Vodacom Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at para 32.
[18]
Section 167(3)(b)(i) of the Constitution.
[19]
Paulsen v Slip Knot Investments 777 (Pty) Limited
[2015] ZACC
5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at paras 20-3.
[20]
See
Chemical Energy Paper Printing Wood & Allied Workers
Union on behalf of Le Fleur v Rotolabel—A Division of Bidpaper

Plus (Pty) Ltd
(2015) 36 ILJ 700 (LC) at para 31;
Cellucity
(Pty) Ltd v Communication Workers Union on behalf of Peters
(2014)
35 ILJ 1237 (LC) at para 9;
Circuit Breakers Industries Ltd v
National Union of Metalworkers of SA on behalf of Hadebe
(2014)
35 ILJ 1261 (LC) at para 19; and
Aon SA (Pty) Ltd v Commission
for Conciliation, Mediation & Arbitration
(2012) 33 ILJ 1124
(LC) at para 18.
[21]
Makate
above n 17.
[22]
Fraser v Absa Bank Ltd (National Director of Public Prosecutions
as Amicus Curiae)
[2006] ZACC 24; 2007 (3) SA 484 (CC); 2007 (3)
BCLR 219 (CC).
[23]
Makate
above n 17 at para 88.
[24]
Id at para 89.
[25]
Moloi v Road Accident Fund
[2000] ZASCA 53
;
2001 (3) SA 546
(SCA) at para 13.
[26]
Road Accident Fund v Mdeyide
[2010] ZACC 18
;
2011 (2) SA 26
(CC);
2011 (1) BCLR 1
(CC) (
Mdeyide
).  See also
Road
Accident Fund v Smith N.O.
[1998] ZASCA 86
;
1999 (1) SA 92
(SCA)
at 98C;
Kotze N.O. v Santam Insurance Ltd
1994 (1) SA 237
(C)
at 246F-247J; and
Terblanche v South African Eagle Insurance Co
Ltd
1983 (2) SA 501 (N).
[27]
Mdeyide
above n 26 at para 45.
[28]
Id at para 50.
[29]
Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited
t/a Metrobus
[2016] ZACC 49
;
2018 (1) SA 38
(CC);
2017 (4) BCLR
473
(CC) (
Myathaza CC
).
[30]
See the analysis of
Myathaza CC
as undertaken by this Court
in
Mogaila v Coca Cola Fortune (Pty) Limited
[2017] ZACC 6
;
(2017) 38 ILJ 1273 (CC);
2017 (7) BCLR 839
(CC) at paras 14-26.
[31]
Myathaza
above n 28 at para 39.
[32]
Id at para 42.
[33]
Id at paras 43-58.
[34]
Id at para 66.
[35]
Mdeyide
above n 27 at para 8.  See also
Uitenhage
Municipality v Molloy
[1997] ZASCA 112
;
1998 (2) SA 735
(SCA) at
742I-743A.
[36]
Murray & Roberts Construction (Cape) (Pty) Ltd v Upington
Municipality
1984 (1) SA 571
(A) at 578H.
[37]
Section 14 of the Prescription Act.
[38]
Section 17 of the Prescription Act.
[39]
Section 10(1) of the Prescription Act.
[40]
Subsection (1) provides:
“(a)
If there is a dispute about the fairness of a dismissal, or a
dispute
about an unfair labour practice, the dismissed employee or
the employee alleging the unfair labour practice may refer the
dispute
in writing to—
(i)
a council, if the parties to the dispute fall within the registered

scope of that council; or
(ii)
the Commission, if no council has jurisdiction.
(b)
A referral in terms of paragraph (a) must be made within—
(i)
30 days of the date of a dismissal or, if it is a later date,
within
30 days of the employer making a final decision to dismiss or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes
the unfair labour practice or, if it is a later date,
within 90 days of the date on which the employee became aware of the
act
or occurrence.”
[41]
This subsection provides:
“If the
employee shows good cause at any time, the council or the Commission
may permit the employee to refer the dispute
after the relevant time
limit in subsection (1) has expired.”
[42]
This subsection provides that “[t]he council or the Commission
must attempt to resolve the dispute through conciliation”.
[43]
This subsection provides:
“If a
council or a commissioner has certified that the dispute remains
unresolved, or if 30 days or any further period as
agreed between
the parties have expired since the council or the Commission
received the referral and the dispute remains unresolved—
(a)
the council or the Commission must arbitrate the dispute at the

request of the employee if—
(i)
the employee has alleged that the reason for dismissal is
related to
the employee’s conduct or capacity, unless paragraph (b)(iii)
applies;
(ii)
the employee has alleged that the reason for dismissal is that the
employer
made continued employment intolerable or the employer
provided the employee with substantially less favourable conditions
or
circumstances at work after a transfer in terms of section 197 or
197A, unless the employee alleges that the contract of employment

was terminated for a reason contemplated in section 187;
(iii)          the
employee does not know the reason for dismissal; or
(iv)          the
dispute concerns an unfair labour practice; or
(b)
the employee may refer the dispute to the Labour Court for
adjudication
if the employee has alleged that the reason for
dismissal is—
(i)
automatically unfair;
(ii)
based on the employer’s operational requirements;
(iii)
the employees participation in a strike that does not comply with

the provisions of Chapter IV; or
(iv)
because the employee refused to join, was refused membership of or

was expelled from a trade union party to a closed shop agreement.”
[44]
This section provides:
“(a)
The referral, in terms of subsection (5)(b), of a dispute to the
Labour
Court for adjudication, must be made within 90 days after the
council or (as the case may be) the commissioner has certified that

the dispute remains unresolved.
(b)
However, the Labour Court may condone non-observance of that time

frame on good cause shown.”
[45]
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty)
Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at para 53.
[46]
Section 1(a) of the LRA.
[47]
See
Steenkamp v Edcon Ltd
[2016] ZACC 1
;
2016 (3) SA 251
(CC);
2016 (3) BCLR 311
(CC) at para 105.
[48]
Sidumo v Rustenburg Platinum Mines Ltd
[2007] ZACC 22
;
2008
(2) SA 24
(CC);
2008 (2) BCLR 158
(CC) at paras 97-100.
[49]
Benson v Walters
1984
(1) SA 73
(A)
at 82C.
[50]
Truter v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA)
at para 16.
[51]
Fluxman Incorporated v Levenson
[2016] ZASCA 183
;
2017 (2) SA
520
(SCA) at para 42 and
Claasen v Bester
[2011] 197 ZASCA;
2012
(2) SA 404 (SCA) at para 15.  See also
Mtokonya v
Minister of Police
[2017] ZACC 33
;
2017 (11) BCLR 1443
(CC) at
paras 47-51.
[52]
Other cases that have come before us which raised the same issue
are:
Myathaza CC
;
NUMSA v Hendor Mining Supplies
(A
Division of Marschalk Beleggings (Pty) Ltd)
[2017] ZACC 9
;
(2017) 38 ILJ 1560 (CC); 2017 (7) BCLR 851 (CC).
[53]
Section 185 of the LRA reads:
“Every
employee has the right not to be—
(a)
unfairly dismissed; and
(b)
subjected to unfair labour practice.”
[54]
Examples of this are (a) the requirement in section 185 of the LRA
that a dismissal must be for a fair reason and (b) must be

procedurally fair and the consultation requirements in section 189
of the LRA.  All these provisions of the LRA are derived,
at
least in part, from the labour law jurisprudence created largely by
the Industrial Court in the 1980s under the 1956 LRA.
[55]
35 of 1994.
[56]
Section 5(1)(a) provides that:
“The Council
shall—
(a)     strive to promote the goals of economic
growth, participation in economic decision-making and social

equity.”
[57]
Section 5(1)(b) provides that:
“The Council
shall—
(b)
seek to reach consensus and conclude agreements on matters
pertaining to social and economic policy.”
[58]
Section 5(1)(c) provides that:
“The Council
shall—
(c)
consider all proposed labour legislation relating to labour market
policy before it is introduced
in Parliament.”
[59]
Explanatory Memorandum
(1995) 16 ILJ 278.
[60]
Id at 311.
[61]
Sidumo
above n 48.
[62]
Id at para 74.
[63]
Steenkamp v Edcon Ltd
[2016] ZACC 1; 2016 (3) SA 251 (CC);
2016 (3) BCLR 311 (CC).
[64]
Steenkamp
above n 63 at para 193.
[65]
Chirwa v Transnet Limited
[2007] ZACC 23; 2008 (4) SA 367
(CC); 2008 (3) BCLR 251 (CC).
[66]
3 of 2000.
[67]
Chirwa
above n 65 at para 77.
[68]
Fredericks v MEC for Education and Training
,
Eastern Cape
[2001] ZACC 6; 2002 (2) SA 693 (CC); 2002 (2) BCLR 113.
[69]
Gcaba v Minister for Safety and Security
[2009] ZACC 26; 2010
(1) SA 238 (CC); 2010 (1) BCLR 35 (CC).
[70]
National Union of Metal Workers of South Africa v Intervalve
(Pty) Ltd
[2014] ZACC 35
; (2015) 36 ILJ 363 (CC);
2015 (2) BCLR
182
(CC) (
Intervalve
).
[71]
Id at paras 71-2.
[72]
CMI Business Enterprises CC v September
unreported judgment
of the Labour Appeal Court, Case No: JA 111/2014, 26 October 2016.
[73]
LRA above n 1 at section 191(11).
[74]
Id.
[75]
Id.
[76]
Prescription Act above n 2 at section 11.
[77]
Steenkamp
above n 63 at para 105.
[78]
Id at paras 116-9.
[79]
Sidumo
above n 48.
[80]
LRA above n 1 at section 145.
[81]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Tourism
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR
687
(CC) (
Bato Star
).
[82]
Sidumo
n 48 above at para 94.
[83]
Id at paras 94-104.
[84]
Id.
[85]
Id at para 100.
[86]
LRA above n 1 at section 185.
[87]
Section 191(4) provides that a bargaining council or the CCMA must
attempt to resolve through conciliation an unfair dismissal
dispute
that has been referred to it in terms of section 191(1).
Section 135(2) provides that a Commissioner who has been
appointed
to resolve a dispute through conciliation must determine a process
to attempt to resolve that dispute and that process
may involve
mediating the dispute or conducting a fact-finding exercise and
making a recommendation to the parties which may
be in the form of
an advisory arbitration award.
[88]
LRA above n 1 at section 193.
[89]
Id at section 191.
[90]
Prescription Act above n 2.
[91]
LRA above n 1.
[92]
CUSA v Tao Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA
204
(CC);
2009 (1) BCLR 1
(CC) at para 63.  See also
Myathaza CC
above n 29 at para 30.
[93]
Myathaza CC
id at para 94.
[94]
Id.
[95]
Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC);
1996 (12) BCLR 1559
(CC) at paras 11-2.
[96]
Id.
[97]
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007
(7) BCLR 691
(CC) at para 47.
[98]
Id at para 48.
[99]
Id.
[100]
Mdeyide
above n 26 at para 8.
[101]
The Supreme Court of Canada recently expressed a similar view on
prescription periods promoting access to justice, particularly
where
they are “harmonised”.  See
Montreal (City) v
Dorval
[2017] SCC 48
at para 2.  Wagner J added that
“[s]uch rules are essential in a democratic society that
wishes to preserve public
order, sanction the negligence of
creditors or ensure social peace”.
[102]
Section 23 of the Constitution provides:
“(1)
Everyone has the right to fair labour practices.
(2)
Every worker has the right–
(a)
to form and join a trade union;
(b)
to participate in the activities and programmes of a trade union;

and
(c)
to strike.
(3)
Every employer has the right–
(a)
to form and join an employers’ organisation; and
(b)
to participate in the activities and programmes of an employers’

organisation.
(4)
Every trade union and every employers’ organisation has the

right–
(a)
to determine its own administration, programmes and activities;
(b)
to organise; and
(c)
to form and join a federation.
(5)
Every trade union, employers’ organisation and employer has

the right to engage in collective bargaining.  National
legislation may be enacted to regulate collective bargaining.  To

the extent that the legislation may limit a right in this Chapter,
the limitation must comply with section 36(1).
(6)
National legislation may recognise union security arrangements
contained in collective agreements.  To the extent that the
legislation may limit a right in this Chapter, the limitation
must
comply with section 36(1).”
[103]
United Nations Human Rights Office of the High Commission “What
are Human Rights” available at
http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx.

See also
De Reuck v Director of Public Prosecutions
(Witwatersrand Local Division)
[2003] ZACC 19
;
2004 (1) SA 406
(CC);
2003 (12) BCLR 1333
(CC) at para 55.
[104]
Makate
above n 17 at para 90.
[105]
Id at para 84.
[106]
Id at paras 87-93.  See also section 39(2) of the Constitution
which reads “[w]hen interpreting any legislation, and
when
developing the common law or customary law, every court, tribunal or
forum must promote the spirit, purport and objects
of the Bill of
Rights”.
[107]
Id at para 26.
[108]
Desai N.O. v Desai
[1995] ZASCA 113; 1996 (1) SA 153 (A).
[109]
LTA Construction v Minister of Public Works and Land Affairs
[1993] ZASCA 149; 1994 (1) SA 153 (AD).
[110]
Makate
above n 17 at para 25.
[111]
Electricity Supply Commission v Stewarts and Lloyds of SA (Pty)
Ltd
1981 (3) SA 340
(A) (
Escom
).
[112]
Makate
above n 17 at para 85.  See also
The
New Shorter English Dictionary
3ed
(Clarendon Press, Oxford
1993)
vol 1 at 604.
[113]
Myathaza
CC
above n 29 at para 79.  See also
section 193 of the LRA.
[114]
Escom
above n 111 at para 344F and
Makate
above n 17
at para 188.
[115]
See the reference to section 16(1) at [142].
[116]
LAC judgment above n 9 at para 9.
[117]
Mdeyide
above n 26 at paras 44-5.
[118]
Id at paras 46-52.
[119]
Oxford Thesaurus of English
2 ed (OUP, Cape Town 2004) at
456.
[120]
See
Mdeyide
above n 26 at para 45 referencing
Road
Accident Fund v Smith N.O.
[1998] ZASCA 86
;
1999 (1) SA 92
(SCA)
at 98F.
[121]
Id at paras 50-1.
[122]
Section 13 of the Prescription Act reads:
“(1)
If—
(
a
)
the creditor is a minor or is insane or is a person under
curatorship
or is prevented by superior force including any law or
any order of court from interrupting the running of prescription as
contemplated
in section 15 (1); or
(
b
)
the debtor is outside the Republic; or
(
c
)
the creditor and debtor are married to each other; or
(
d
)
the creditor and debtor are partners and the debt is a debt which

arose out of the partnership relationship; or
(
e
)
the creditor is a juristic person and the debtor is a member of the

governing body of such juristic person; or
(
f
)
the debt is the object of a dispute subjected to arbitration;

or
(
g
)
the debt is the object of a claim filed against the estate of a

debtor who is deceased or against the insolvent estate of the debtor
or against a company in liquidation or against an applicant
under
the Agricultural Credit Act, 1966 (Act No. 28 of 1966); or
(
h
)
the creditor or the debtor is deceased and an executor of the estate

in question has not yet been appointed; and
(
i
)
the relevant period of prescription would, but for the provisions
of
this subsection, be completed before or on, or within one year
after, the day on which the relevant impediment referred to
in
paragraph (a), (b), (c), (d), (e), (f ), (g) or (h) has ceased to
exist, the period of prescription shall not be completed
before a
year has elapsed after the day referred to in paragraph (i).
(2)
A debt which arises from a contract and which would, but for the

provisions of this subsection, become prescribed before a reciprocal
debt which arises from the same contract becomes prescribed,
shall
not become prescribed before the reciprocal debt becomes
prescribed.”
[123]
Section 14 of the Prescription Act reads:
“(1)
The running of prescription shall be interrupted by an express or
tacit
acknowledgement of liability by the debtor.
(2)
If the running of prescription is interrupted as contemplated in

subsection (1), prescription shall commence to run afresh from the
day on which the interruption takes place or, if at the time
of the
interruption or at any time thereafter the parties postpone the due
date of the debt, from the date upon which the debt
again becomes
due.”
[124]
Section 15 of the Prescription Act reads:
“(1)
The running of prescription shall, subject to the provisions of
subsection
(2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt.
(2)
Unless the debtor acknowledges liability, the interruption of

prescription in terms of subsection (1) shall lapse, and the running
of prescription shall not be deemed to have been interrupted,
if the
creditor does not successfully prosecute his claim under the process
in question to final judgment or if he does so prosecute
his claim
but abandons the judgment or the judgment is set aside.
(3)
If the running of prescription is interrupted as contemplated in

subsection (1) and the debtor acknowledges liability, and the
creditor does not prosecute his claim to final judgment,
prescription
shall commence to run afresh from the day on which the
debtor acknowledges liability or, if at the time when the debtor
acknowledges
liability or at any time thereafter the parties
postpone the due date of the debt, from the day upon which the debt
again becomes
due.
(4)
If the running of prescription is interrupted as contemplated in

subsection (1) and the creditor successfully prosecutes his claim
under the process in question to final judgment and the interruption

does not lapse in terms of subsection (2), prescription shall
commence to run afresh on the day on which the judgment of the
court
becomes executable.
(5)
If any person is joined as a defendant on his own application, the

process whereby the creditor claims payment of the debt shall be
deemed to have been served on such person on the date of such

joinder.
(6)
For the purposes of this section, “process” includes
a
petition, a notice of motion, a rule
nisi
, a pleading in
reconvention, a third party notice referred to in any rule of court,
and any document whereby legal proceedings
are commenced.”
[125]
Mdeyide
above n 26 at para 10.
[126]
Id at para 8.
[127]
Section 191(2):
“If the
employee
shows good cause at any time, the
council
or
the Commission may permit the
employee
to refer the
dispute
after the relevant time limit in subsection (1) has expired.”
Section 191(11)(b):
“However,
the Labour Court may condone non-observance of that timeframe on
good cause shown.”
[128]
Myathaza CC
above n 29 at para 33.
[129]
Society of Lloyd’s v Price; Society of Lloyd’s v Lee
[2006] ZASCA 88
;
2006 (5) SA 393
(SCA)
at
para 10.
[130]
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) (
Endumeni Municipality
)
at para 18.
[131]
Id at para 19 referencing
K & S Lake City Freighters Pty Ltd
v Gordon & Gotch Ltd
[1985] HCA 48
;
(1985) 157 CLR 309
(
K & S
).
[132]
K & S
id at 315:
“Problems of
legal interpretation are not solved satisfactorily by ritual
incantations which emphasise the clarity of meaning
which words have
when viewed in isolation, divorced from their context.  The
modern approach to interpretation insists that
context be considered
in the first instance, especially in the case of general words, and
not merely at some later stage when
ambiguity might be thought to
arise.”
[133]
CUSA
above n 92 at para 63.
[134]
NEHAWU obo Leduka v National Research Foundation
[2016]
ZALCJHB 445 at paras 15-6.
[135]
Makuse v Commission for Conciliation, Mediation and Arbitration
[2015] ZALCJHB 265 at para 5.
[136]
First judgment at [50] and [69].
[137]
Id.
[138]
Balaram v Commission for
Conciliation Mediation and Arbitration
[2000] 9 BLLR 1015 (LC).
[139]
Gianfranco Hairstylists v Howard
[2000] 3 BLLR 292
(LC)
(
Gianfranco
).
[140]
Balaram
above n 138 at para 20.2.
[141]
Gianfranco
above n 139 at paras 12-3.
[142]
Id at paras 12 and 14.
[143]
Section 191(11)(b) provides that “the Labour Court may condone
non-observance of that timeframe on good cause shown”.
[144]
See
Myathaza
CC
above n 29 at para 116.
[145]
Id at para 75.
[146]
Id.  See also
Mountain Lodge Hotel (1979) (Pvt) Ltd v
McLoughlin
1984 2 SA 567
(ZS) at 570-1.
[147]
See
Myathaza
CC
above n 29 at para 23.  See also
Bato Star
above n 81 at para 91:
“The
technique of paying attention to context in statutory construction
is now required by the Constitution, in particular,
section 39(2).
As pointed out above, that provision introduces a mandatory
requirement to construe every piece of legislation
in a manner that
promotes the ‘spirit, purport and objects of the Bill of
Rights.’”
[148]
Makate
above n 17 at para 90.
[149]
See [153] referencing
Makate
above n 17.
[150]
Wessels v Coetzee
[2013] ZAGPPHC 82 at para 29.
[151]
See
Myathaza
CC
above n 29 at paras 23 and 73.
[152]
Section 191(1)(a) of the LRA.
[153]
Myathaza
CC
above n 29 at para 23.
[154]
National Union of Metalworkers of South Africa v Driveline
Technologies (Pty) Ltd
[1999] ZALC 157
(
Driveline
) at
para 73.
[155]
Myathaza
CC
above n 29 at para 133.
[156]
Driveline
above n 154 at para 9.  See also
CUSA
above
n 92 at paras 65-6.
[157]
Rule 5A reads:
“The
Commission may provide notice of a conciliation or arbitration
hearing, or any other proceedings before it, by means
of any of the
methods prescribed in Rule 5 and may, in addition, give notice by
means of short message service.”
[158]
Rule 16 reads:
“(1)
Conciliation proceedings are private and confidential and are
conducted
on a without prejudice basis.  No person may refer to
anything said at conciliation proceedings during any subsequent
proceedings,
unless the parties agree in writing or as ordered
otherwise by a court of law.
(2)
No person, including a commissioner, may be called as a witness

during any subsequent proceedings in the Commission or in any court
to give evidence about what transpired during conciliation
unless as
ordered by a court of law.”
[159]
Section 135(1) of the LRA.
[160]
CUSA
above n 92 at paras 65-6.
[161]
Driveline
above n 154.  See also
Intervalve
above
n 70 at para 40.
[162]
Cape Town Municipality v Allianz Insurance Co Ltd
1990 (1) SA
311
(C) at 334H-J.
[163]
Makate
above n 17 at para 90.
[164]
Links v Member of the Executive Council, Department of Health,
Northern Cape Province
[2016] ZACC 10
;
2016 (4) SA 414
(CC);
2016 (5) BCLR 656
(CC) at para 26.
[165]
Id at para 35.  See also this Courts minority judgment in
Mtokonya
above n 51 at para 135:
“To hold
that a debt is recoverable even where the creditor has no knowledge
of it would clearly subvert the objects of
section 12 in particular.
The main object is that prescription shall not begin to run
unless the debt is due and the creditor
actually knows about it or
he or she is deemed to know.  Such an interpretation would not
accord with section 39(2) of the
Constitution.  It would
frustrate the enjoyment of the rights guaranteed by section 34 in
circumstances where it was impossible
for the creditor to institute
legal proceedings.”
[166]
Ngqula
v South African Airways (Pty) Ltd
[2012] ZASCA
120
;
2013 (1) SA 155
(SCA) at para 18.
[167]
Kruger v Minister of Health
[2016] ZAFSHC 179
at para 36.
[168]
Mtokonya
above n 51 at paras 138 and 150.
[169]
Food and Allied Workers Union v Ngcobo N.O.
[2013] ZASCA 45
;
2013 (5) SA 378
(SCA) (
Ngcobo
) at para 10.
[170]
National Union of Metal Workers v SA Truck Bodies (Pty) Ltd
[2007] ZALC 20
(
SA Truck Bodies
) at para 24.
[171]
Melane
v
Santam
Insurance Co Ltd
1962
(4) SA 531
(AD);
[1962] 4 All SA 442
(AD) at 532B-F.